Preamble

The House met at Eleven o'clock

PRAYERS

[Mr. SPEAKER in the Chair]

Orders of the Day — LIMITATION BILL

As amended (in the Standing Committee), considered.

11.4 a.m.

Mr. John Parker: On a point of order, Mr. Speaker. Could you indicate which Amendments are to be called, in view of the very large number which have been put down which are of the kind which should have been put down for the Committee stage? In effect, the Report stage is being converted into a Committee Stage?

Mr. Speaker: I do not quite understand this observation. If the hon. Gentleman looks in the customary place now, he will find a list of the Amendments selected. With regard to the Report stage being converted into a Committee stage, the power of selection is, virtually, vested exclusively in the Chair. The Chair is responsible for what has been selected.

New Clause.—(EXTENSION OF SECTION 26 OF ACT 1939.)

In section 26 of the Limitation Act 1939 (which provides that in certain cases the commencement of the period of limitation shall be postponed) the following paragraph shall be inserted after paragraph (c) thereof—
(d) the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute, or independently of any contract or any such provision) and the damages claimed consist of or include damages in respect of personal injuries to the plaintiff or any other person, and where the right of action was unknown and could not have reasonably been ascertained by the plaintiff until a date after the right of action had accrued,
and after the words "the fraud or the mistake" there shall be inserted the words "or in a case to which paragraph (d) of this section applies, has become aware of or might reasonably have become aware of the right of action".—[Mr. Fletcher.]

Brought up, and read the First time.

Mr. Eric Fletcher: I beg to move, That the Clause be read a Second time.
The object of the new Clause is to introduce an amendment into the Limitation Act, 1939. The House will be aware that the period of limitation has varied from time to time and, whereas for a long time until the Limitation Act, 1939, it was six years, it was subsequently reduced to three years, and various other changes have from time to time been made in the period of limitation appropriate to bar actions of various kinds.
It has recently been discovered that there is an unfortunate defect in the law of limitation as it stands at present, a defect which puts great hardship on certain people, particularly workmen who work in dangerous conditions and contract illnesses of one kind and another which, through no fault of theirs and through no fault of medical advisers, cannot be detected by any method known to science for many years.
A glaring example of this occurred recently in the case of Cartledge v. Jopling & Sons, Ltd., of Sunderland. where ten workmen contracted pneumoconiosis as the result of a failure by their employers to observe their statutory duties under the Factories Act. They brought an action for damages in 1956, which action eventually came before the High Court, then went to the Court of Appeal, and ultimately went to the House of Lords.
The defence was that the inception of the disease from which the plaintiffs suffered started before 1st October, 1950, that is, more than six years earlier than the date when the writs were issued. In the meantime, at least one of the unfortunate plaintiffs had died and his action was revived by his widow. The plaintiffs were able to prove to the satisfaction of the court that it was the failure of the employer to take adequate precautions under the Factories Act which caused them to become the unfortunate victims of pneumoconiosis and that, apart from the Statute of Limitations, they would undoubtedly have had a right to recover substantial damages in each case. But the defendants, as they were entitled to do as the law stood, pleaded the Statute of Limitations and said, "This disease started over six years before the date on


which the writ was issued and therefore it is barred".
The question which the courts had to consider was whether that defence was valid, and, with the greatest reluctance and regret, they came to the conclusion that it was valid in law because the terms of the Limitation Act provide that no action shall be brought from a date which in fact is the date when the cause of action accrued. Since the cause of action had accrued more than six years before the actions were brought, and although the plaintiffs could not possibly have known that the cause of action had accrued, their claim was defeated by this statutory defence. Since the time when that action was brought, the period of limitation for similar cases has been reduced from six years to three years, but that merely means that an additional and greater hardship will be caused to defendants in this position unless the law is changed.
As a result of that decision in the courts, a Committee was appointed, presided over by Mr. Justice Edmund Davies, which issued a Report known as the Report of the Committee on Limitation of Actions in Cases of Personal Injury. That Committee realised that something should be done to change the law, and the object of the Bill is to change the law in order to prevent plaintiffs who find themselves in the unfortunate position to which I have referred from being deprived of their ordinary rights by a statutory defence which can have no possible merits. As the Committee pointed out, there are various ways in which the law can be changed, and the Bill incorporates certain methods by which it can be changed, but, in my submission, they are not completely adequate to give workmen or others who find themselves in this predicament the relief to which I think they are entitled.
The law already provides that there should be certain exceptions to the ordinary period of prescription. For example, it may be right that in ordinary cases a plaintiff who has a cause of action should not delay seeking his remedy unduly and should not thereby put an unnecessary burden on a defendant in defending his claim, but there are certain circumstances in which it would be inequitable for any period of limitation to apply. For that reason, Section 26 of the Limitation Act provides that if an

action is based on the fraud of the defendant or his agent, or if the right of action is concealed by fraud, then the period of limitation should not begin to run until the plaintiff has discovered the fraud or mistake. Manifestly, it would be unjust for a plaintiff who suffered damages by reason of fraud to have it alleged against him that the period of six years or three years, whichever it is, should run from the date when the tort was committed. In such cases, the period of limitation does not begin to run until the fraud is discovered.
11.15 a.m.
The object of my new Clause is to equate the position of plaintiffs who suffer injury and damage of the kind revealed in the case of Cartledge v. Jopling with that of plaintiffs who suffer injury and damage as a result of the fraud of the defendant. It provides that, instead of a cause of action running from the date when the cause of action arose, it should not begin to run, as the new Clause states, until the right of action either became known to the plaintiff or might reasonably have been ascertained by him. I regard this as a distinct improvement on the provisions in the Bill, because, as the Bill stands, a plaintiff is not given, as I think he should be given, an absolute right to ensure that his action is not barred by a period which runs from the date when the right of action accrued.
Under the Bill as it stands, a plaintiff has to do two things. To begin with, before he can even bring an action, he has to satisfy the court on an ex parte application, in which he has to produce all of his evidence, first, that he has a good cause of action, and, secondly, that there are reasons which make it right that the ordinary period of limitation should not operate in his case. That means that a plaintiff would have a double burden imposed on him, which seems to me to be quite unjust and inequitable, for this reason. As the Edmund Davies Committee pointed out, it is impossible to tell how many cases of this kind there are because it must frequently happen that an injured workman or a workman who, unfortunately, has contracted a disease such as pneumoconiosis cannot be sure for a long time. The Report makes it clear that the effects of exposure to silica dust are such that the lungs become imperceptibly affected, and that can go on for a long time without it being detected by


X-ray and without the workman suffering any inconvenience or showing any symptoms. Only after the disease has become aggravated over a period of years does serious injury to the lungs manifest itself, and medical science is then able to say that, as a result of many years' exposure to this kind of risk, the inception of the disease must have dated back to a much earlier time.
It is easy to imagine the dilemma in which workmen in these circumstances find themselves. They may have a slight suspicion of a lung being affected or of some other disease, but they obviously cannot take the responsibility of commencing an action for damages, because there is no method of proof. It seems to me, therefore, that it would be quite wrong that they should suffer through no fault of their own or that they should be deprived of the right which any other injured workman has of bringing an action, if he desires, whatever the risks.
I put this forward as an alternative to the proposals in the Bill, for this reason. It appears to me to have the support of one of the eminent Law Lords who considered the case of Cartledge v. Jopling in the House of Lords. It was Lord Evershed—I quote from the All England Law Reports—who, like all the other judges who had to consider the case, expressed regret that, as he said, the well-established principles of the interpretation of Statutes by the courts forbade him to come to an interpretation of the law which would give relief. One reason why he reached that conclusion was, as he said,
more particularly so having regard to the express provision in Section 26 of the Limitation Act, 1939, for postponing the date of the accrual of the cause of action in cases involving fraud or mistake to the date when the fraud or mistake was, or could, with reasonable diligence have been discovered.
He went on to say:
My Lords, I share accordingly with my noble and learned friend the hope that in the interests of justice Parliament will take an early opportunity of making by way of some corresponding qualification a further exception to the general formula in the case of wrongs of the kind here in question. If on the one hand it is right and proper that causes of action should not be allowed to become stale, it must be no less right and proper that persons employed in factories should not have the ordinary enjoyment of their working lives de-

stroyed by the need of constant and elaborate medical examination and be driven, often prematurely, to litigate with their employers lest they lose the benefit of just compensation for injury received. The present case well illustrates the result, for the most part highly beneficial, of the impact of scientific discovery on the working of ancient principles of the law.
In commending the new Clause to the House, I merely add this observation as background. A plea by any defendant of the Statute of Limitations has no merit. It is a mere subterfuge or stratagem which the law permits to a defendant to resist the righteous claim of a plaintiff. The Statute of Limitations does not purport to take away the plaintiff's right; it merely states that he cannot bring an action. For example, if the defendant company were in liquidation, I understand that in any case a plaintiff would be able to claim in that liquidation, because the words of the Act are that no action should be brought. Equally, in a case in which a claim is brought against a person, a person can allege a counter-claim although it is an action that would be barred by a period of six years or three years if he had brought it in the first place.
It is also to be observed that there is no obligation on defendants to plead the Statute of Limitations. There have, for example, been cases in which trustees have had to consider whether they have a duty to their beneficiaries to plead the Statute of Limitations. I believe that it has been held that there is no obligation upon trustees as honest persons to attempt to defeat a claim against them by pleading the Statute of Limitations. Therefore, the whole question of the fair and just operation of the Statute of Limitations is to ensure that justice is done to people who have claims which ought to succeed. It is for these reasons that I move the new Clause.

Mr. Speaker: Before I call another speaker, perhaps the House will be good enough to allow me to add to what I said earlier to the hon. Member for Dagenham (Mr. Parker). The list shows my provisional selection of Amendments, save that in the case of Clause 8, page 8, line 19, it should have been the second Amendment which was specified as selected. The two Amendments were not distinguished in the list as originally put forward.

Mr. Antony Buck: The hon. Member for Islington, East (Mr. Fletcher) has outlined the reasons for the introduction of the Bill. He has reviewed the case of Cartledge v. Jopling. There are several ways which might be open to us to deal with the mischief which was revealed by that case, and, indeed, by other types of case which were reviewed in the Committee which was presided over by Mr. Justice Edmund Davies.
In a nutshell, the mischief which we are remedying by the Bill is to ensure that if a person sustains an injury but its real effects remain dormant for a long period, during that time when the injury is, as it were, a secret injury, time shall not be running against that person. That is the purpose of the Bill.
There are many ways of going about this problem. After complete conviction, I thought it safe and right to follow the recommendations of Mr. Justice Edmund Davies' Committee. That distinguished Committee, for whose work the House is, I am sure, immensely grateful, made recommendations of a detailed character about the way that we should make this inroad into the normal rule about limitation of actions.
The normal rule about limitation of actions is a good one. The substance of what the hon. Member for Islington, East has just said would seem to me to have been an attack on there being any limitation period at all; that, in effect, was the burden of the hon. Member's argument. What he has suggested by the new Clause, however, is an alternative way of achieving what I have sought to achieve in the Bill. It has one merit which the hon. Member did not mention, which was one which attracted me initially to thinking in terms of this sort of solution, namely, a mere amendment of Section 26 of the Limitation Act, 1939. That would seem at first blush to have the merit of simplicity, but when one delves into the whole question of limitation one finds that simplicity, for all its attractions, does not bring about a completely desirable solution.
Perhaps I can give an illustration by the effect of certain parts of the new Clause. First, it would not give protection to a whole class of people who ought to have protection, because the Clause

causes time to run where the right of action was unknown. This does not meet the following sort of case, which is the kind of event which could happen to any of us as we leave the House.
We might be knocked down—not seriously—and have a bang on the head. We think that there is no serious consequence and so, in the kindness of our hearts, we take no action although, being cautious people, we take the number of the vehicle involved. Thinking that we have sustained a trivial injury involving merely a bang on the head, or, perhaps, even a moment of semi-consciousness, we do nothing further about it. Then, in three years and one month's time, one could develop an intercranial tumour or epileptic fits or ailments of that character. If one were to adopt the hon. Member's new Clause, one would not be able to proceed now, because at the moment when one is knocked down, one knows that one has a cause of action. So one knows there is a cause for action, but one thinks that the results of it are trivial, but one would be entitled to nominal damages for being knocked down in those circumstances—40s., or pehaps a little more, depending on how serious the knocking down had been. No protection would be received in the new Clause as proposed by the hon. Gentleman. This is the sort of difficulty one gets into when one starts to try to deal with this problem of limitation.
11.30 a.m.
Moreover, there is perhaps another defect, I would respectfully suggest, in the new Clause. It is that it would give to every person a further three-year period from the date of discovery. It may be asked, why not? Mr. Justice Edmund Davies and his Committee considered, and in my view quite rightly, that where there has been a delay—through nobody's fault, but a substantial delay; and we are now going to permit action to be brought—this would perhaps add on defendants a burden which might be thought not reasonable. Where a person does come to full knowledge of the injury and of the nature of his complaint he should in the case of an old claim thereafter act with added expedition. This was something which was accepted by all sides. This point was considered. The Committee asked the Trades Union Congress and the British Employers Confederation their view of the proposal that


12 months should be granted from the discovery of the injury, and they both considered it and considered it acceptable. The new Clause would go further, I would venture to submit to the House, than would be right and proper, giving too much time here, giving defendants no right to have these matters dealt with with expedition.
Then also, when one goes into this matter and looks for a simple solution, one finds there is a further defect, I respectfully submit, in that the Limitation Act does not apply to Scotland, so one would have a divergence in the law here relative to Scotland. One would perhaps have to deal with that point if one were to proceed with this new Clause.
I hope that by these reasons I have shown the House the difficulties of following the hon. Gentleman's solution. The solution in the Bill is one which is on the whole accepted by all sides of industry, by insurance companies, employers, trade unions, the whole range of industry. It is one which was given very careful consideration and upon the distinguished advice received by the Committee, and I venture to suggest that it would be inappropriate to seek now at this late stage a new way to try to deal with the problem we all have in mind.

Mr. Dick Taverne: I should like to ask my hon. Friend the Member for Islington, East (Mr. Fletcher) to withdraw his Clause. There are technical objections which the hon. Member for Colchester (Mr. Buck) has pointed out. The Clause was considered by the National Union of Mineworkers, who are most directly affected, perhaps more directly affected than anybody else, by the Bill, and they were satisfied with the Bill as it stands subject to one point which is itself the subject of an Amendment in the names of my hon. Friend the Member for Bedwellty (Mr. Finch) and my hon. Friend the Member for Cardiff, West (Mr. G. Thomas) and my name. The only point on which they had reservations is the question which we can deal with on Clause 2 when we reach it. Since the mineworkers are satisfied with the Bill, and since the Trades Union Congress are satisfied with the Bill as it stands, subject to this one matter, I do hope that my hon.
Friend will withdraw his new Clause, especially as there are serious legal objections which the hon. Member for Colchester has pointed out.

Mr. Ronald Bell: I have put my name to the new Clause which has been moved by the hon. Member for Islington, East (Mr. Fletcher), and I must say I have a general sympathy with what he has in mind. Equally, if I may say so, I see the force, and I have throughout seen the force, of some of the objections made by my hon. Friend the Member for Colchester (Mr. Buck).
We are all very much indebted to my hon. Friend for bringing forward this Bill, which is an attempt to deal with a blemish in the law which has been apparent in the law for some time. It is actually a double blemish, because quite apart from the results of the amending Act of 1954, I think it was, there were pre-existing difficulties, as he knows, even when we had the six-year period for all kinds of claim; and then to those pre-existing difficulties was added the greater one that the period was reduced to three years for certain classes of claim. I hope he will not feel that because of Amendments like this new Clause having been put down for consideration now, we are in any way lacking in appreciation of the efforts he has made.
The fact is that this is a very difficult and complicated Bill; the whole subject of limitation of actions is difficult and complicated. It was very courageous of him to try to plug this hole by means of a Private Member's Bill at all. He will know that his colleagues in the law are always interested in these subjects and like to make their contributions as solutions of them, and those of us who were not able to be on the Standing Committee have naturally wondered what other approaches there might be. The difficulty is, of course, that on Report one cannot content oneself altogether with indicating a line of improvement which one has in mind. This is a Bill which has indeed a course to run in another place where infelicities in wording can be put right and indeed some corrections can be made, but I do see the point of what he says about the wording of the new Clause.
I think, although I have not put down an Amendment to this effect, because I


am not quite sure how it should be done, that if one puts in such words as
decisive facts relating to right of action
in the new Clause, it may help, in view of the fact that the Bill now does contain a definition Clause. The definition of "decisive facts relating to" would include the magnitude of the injury. He will know what I am referring to—Clause 7. My hon. Friend has dealt with this problem, that one who receives an injury has a right of action when he does not know about the materiality of the damage to himself till after the period has run out. My hon. Friend has dealt with that problem by using the definition Clause to describe what is meant by "decisive facts relating to". Some insertion of those words "decisive facts" in the new Clause of the hon. Member for Islington, East would meet this point.
I do not think that one need be put off by that extremely valid difficulty which my hon. Friend has referred to, because, though it is a most serious blemish on the wording of the new Clause, it is a matter which can be corrected with minimum difficulty at a later stage of this Bill in its course through Parliament. I think that what the hon. Member for Islington. East has in mind, and I certainly have had in mind in supporting the new Clause, is that one really does want to have a rather easier way of correcting this defect.
My hon. Friend's Bill is most carefully and skilfully drafted. Indeed, I think that it is plain that he has had what I may call special help in the matter—[HON. MEMBERS: "No."]—It may be it was all of my hon. Friend's unaided drafting, but I should really not be surprised if expert assistance in the drafting had been available. One appreciates that in a matter of this length and complexity. In a sense, the Bill does the job without leaving any holes, but I think that one's first reaction is one of sheer dismay at the complication which will be introduced into the law of limitations of actions.
I was always unhappy about the three-year period being introduced, and the Bill in a way shows that one was right in doubting the wisdom of ever cutting down the six-year period for this class of action.

Mr. Buck: No.

Mr. Bell: My hon. Friend indicates that he does not agree with me about that.

Mr. Buck: I was indicating that I did not entirely agree with my hon. Friend. The case of Cartledge and Jopling, the one which brought all this to the fore, occurred when the six-year period was still in existence. So the problem would be with us whether we had a three-year or a six-year period.

Mr. Bell: I said earlier that this was a two-headed monster. We had it before the six-year period, I agree, but the frequency with which it arises has immensely increased by the reduction of the period to three years. On the whole, if one receives an injury one is likely to know its effects within six years, and one is presumably less likely to know its full effects within three years. What has given the problem sharpness and required this Bill is the reduction of the period to three years.
Hitherto we have had a relatively simple limitation law, and I am very worried about the introduction of all this complication. Let us consider how it will work. First of all—this is what the hon. Member for Islington, East is really basing himself on—there is no actual right to bring the action. Once the three-year limitation period has passed, the man is at the mercy of the courts and the various procedures. He has no right to bring his action, but he may apply to do so. The Bill says that the man will apply ex parte except in so far as rules of court may otherwise provide. I hazard the guess that it will not be for long that these applications are made ex parte.

Mr. Buck: It will be.

Mr. Bell: My hon. Friend says that it will be; but let us consider it. The application is not a merely formal one. It will be an application with the calling of evidence, of witnesses.

Mr. Buck: No.

Mr. Bell: My hon. Friend says that it will not. But the applicant has to produce evidence. He has to produce such evidence as would, in the absence of any evidence to the contrary, be sufficient to prove his case.

Mr. Buck: Affidavit evidence is expected.

Mr. Bell: I suppose that affidavit evidence might well be used in practice, but there is nothing in the Bill to say that live evidence shall not be given. Is one really to imagine that the other side will not want to be represented during an application when two things are to be dealt with: first of all, whether there is a prima facie case and secondly, whether circumstances exist, as defined in the Bill, which justify the granting of the leave of the court for an action to be brought out of time? There are quite large sums of money at stake as a rule in these cases. The defendant is usually an insurance company or employer and will, of course, want legal representation present while all this is going on. The defendant will probably want to argue that the circumstances did not exist, that the man had knowledge or the opportunity of knowledge, that he is affected with constructive knowledge.
11.45 a.m.
All these are not matters which are very aptly dealt with by affidavit or by the argument of counsel. After all, there is a certain amount of complication in the Bill about the requirements which are to be satisfied, quite apart from the prima facie case history. There are requirements which are to be satisfied as to the state of mind of the plaintiff at material times before one can decide whether he should have leave to proceed or not. I certainly think that the defendants will seek the opportunity of resisting the application. Rules of court will have to be made so that, broadly, if the defendant applies to be heard and to resist, he shall be given the right to do so. Then this very soon ceases to be an ex parte application and becomes a sort of subsidiary hearing of the action.
One cannot always avoid that kind of thing in the administration of the law, but it will be very cumbersome indeed and rather expensive and not the kind of procedure that one wants to see introduced into the law if one can avoid it. That is, I think, what the hon. Member for Islington, East has in mind, and it is what I have in mind. There are the two questions. There is the point that the man who did not have within the limitation period the materials on which to found his action shall have a right to bring his action, subject, of course,

as now, in the case of fraud and mistake, to his proving at the time of the action or on an application to strike out that he can bring himself within Section 26. The other point is that one should not have this cumbrous procedure of a kind of ghost hearing before the real one, with all the difficulty, incidentally, which follows in the Bill about the transitional provisions and all the rest of it.
I know what my hon. Friend has said about simplicity. Sometimes the pursuit of it can lead to great complication. However, I feel that one ought somehow to try to do this in less than these eleven pages and with less of the procedural difficulties.
Section 26 seems to be the obvious way of doing it briskly and shortly, and I ask my hon. Friend to consider whether, with the addition that I have suggested of the wards "the decisive facts relating to", this might not be a way of doing it. It would, of course, like some of the safeguards that one gets, have the complicated procedure of the application and the statutory definitions, but as a working procedure it would be more acceptable and more practical than the elaboration which has resulted from the deliberations of the Committee, for whose work one is, of course, extremely grateful.
I do not know whether my hon. Friend feels that it is too late at this Commons stage of the Bill, but he might like to consider it. There really is a point here. If we go forward on these lines, within a year or two we shall be coming back again to refashion the Bill, and, incidentally, perhaps to extend it because as it stands it does not cover the case of the person who is under a disability other than the lack of knowledge, of fraud, or mistake. It is like the case of the magistrates—I am sure that my hon. Friend will remember this—who had a man certified in a manner which was negligent because they had no jurisdiction and had not the necessary two medical certificates. The man was, therefore, put away in a lunatic asylum, and he remained in that form of incarceration and legal disability for more than six years. He escaped and remained at large for more than twelve months so that he was, under the Lunacy Act, safe, and then he issued his writ. Although he had a cause of action which was apparently irrefutable, he


nevertheless had the Limitation Act successfully pleaded against him; and that cliff-lenity remains unresolved.
This is an extraordinary state of affairs. It is a pity in a way that when one is plugging the holes in the limitation law this matter, which really is outrageous, should be left out of it. I think that this is outside the Long Title of the Bill because it does not relate to personal injuries. I mention it because this subject needs further examination.

Mr. James Griffiths: I congratulate the hon. Member for Colchester (Mr. Buck) on his Bill, and on behalf of the miners I convey our thanks to him for taking advantage of his luck in the Ballot to introduce it. Although we would like to see it amended, I hope that the Bill in general will be given the unanimous approval of this House. We want it badly. I am anxious to make it as reasonably easy as possible for men stricken in this way to claim. We are reaching a stage in which industrial diseases contracted during employment—often because of the negligence of employers—do not reveal themselves for a long time.
A few weeks ago I met again an old colleague who once worked with me in the mines. I am almost afraid to confess how long ago that was. It was forty-one years ago. Yet, after forty-one years out of the pit, that old friend of mine was certified as being disabled by pneumoconiosis.
In that same week, a constituent came to see me. His was a tragic case. He is an old-young man of 60 years of age. He is a machinist in the building trade—or was. He told me his simple but tragic story. He is a very skilled craftsman and among his jobs was to saw timber and asbestos sheets. During the war there was a change in the nature of the timber used and he suddenly found that instead of shavings more and more dust was resulting from the sawing. Similar circumstances arose with the asbestos sheets.
For some time, no attempt was made by the firm at dust prevention. Of course we are now beginning to learn of the tremendous price our people are paying for the failure to prevent dust in industry. That man is now completely disabled. I am satisfied that he has something like pneumoconiosis. The doctors

may call it emphysyme but, of course, many of these terms are almost interchangeable. I am anxious that this man should have what I consider him entitled to. He is disabled because no real attempt was made to prevent the dust which has made him an old man at 60.
I am glad of the support of all my legal friends here, including that of my right hon. and learned Friend the Member for Newport (Sir F. Soskice). He will recall that when he was Solicitor-General and I was Minister of National Insurance, after long arguments on private Bills and other Measures about the doctrine of common employment, we abolished it altogether. I do not suppose that any one wants to bring it back. It was a simple step we took but it had been argued by lawyers for a century. Perhaps the hon. Member for Buckinghamshire, South (Mr. Ronald Bell) was in the argument.

Mr. Ronald Bell: Not quite for a century.

Mr. Griffiths: I am glad to hear it. Now here is another piece of limitation. If a man is disabled by accident or disease then, if that is due to the negligence of his employer, I am concerned to make it as reasonably easy as possible for him to secure justice. That is why I am glad to support the Bill. I am willing to take the skilled advice we have available to us as to the best way of achieving this, whether by this proposed new Clause or by the Amendment of my hon. Friend the Member for Bedwellty (Mr. Finch) we shall discuss later.
Once again I thank the hon. Member for Colchester. This is one further improvement in our existing provisions. I hope that it will have a unanimous Third Reading later today.

The Solicitor-General (Sir Peter Rawlinson): I want briefly to advise the House on this Clause in view of the speeches made by the hon. Member for Islington, East (Mr. Fletcher) and my hon. Friend the Member for Buckinghamshire, South (Mr. Ronald Bell). The right hon. Member for Llanelly (Mr. J. Griffiths) has indicated our appreciation of this problem which has been illustrated particularly by the case quoted by the hon. Member for Islington, East. The problem has caused the gravest concern


not only to the sufferers but also to those who have practised in the law.
The approach suggested by the hon. Member for Islington, East is radically different from the approach set out in the Bill. My hon. Friend the Member for Colchester (Mr. Buck) has accepted the suggestions made by the Edmund Davies Committee, to which he has paid tribute, and I would now like to add my own. His Bill was based on the Committee's recommendations and we accept that as reasonable. After all, one need only look at the membership of that Committee to realise that every single aspect of this problem was represented by men of great experience.
As my hon. Friend the Member for Buckinghamshire, South has said, although he would like to have reached a solution of complete simplicity this is inevitably a complicated matter. The gentlemen on the Edmund Davies Committee studied it for twenty months, and having done so felt that the approach now adopted by my hon. Friend in this Bill is the right one to get the best degree of justice and equity.
As my hon. Friend the Member for Colchester has pointed out, the wording of the new Clause would make a limitation period uncertain in all personal injury cases. It would thus make every case uncertain. It is obscure and would, as my hon. Friend said, result in injustice to many prospective plaintiffs. He gave the example of a person being knocked and who suffered serious consequences later from an injury which seemed trivial at the time. He would not be able to bring an action in respect of that under this new Clause.
For reasons based on the wording and effectiveness of the new Clause I recommend the House not to accept it but take the course suggested by my hon. Friend the Member for Colchester.

Mr. William Wells: While accepting all the criticisms that the hon. and learned Gentleman has made of the Clause, is it not possible to have some such approach as my hon. Friend the Member for Islington, East (Mr. Fletcher) has suggested in order to eliminate the need for an application for leave of the court to proceed—a matter which will be discussed later—

which, as we have heard, the National Union of Mineworkers objects to? Indeed, I object to it myself.

The Solicitor-General: I apprehended from what was said by the right hon. Member for Llanelly that this matter would come up later for discussion and is one on which different views are held.

Mr. J. Griffiths: Keep an open mind on the Amendment of my hon. Friend the Member for Bedwellty (Mr. Finch) when it comes up.

The Solicitor-General: If so experienced a parliamentarian gives advice like that across the Floor of the House, one is tempted to accept it. However, we shall discuss this later. I know that it is a matter of considerable concern to the House. I recommend the House to accept that there is merit in the course proposed by my hon. Friend the Member for Colchester in view of the circumstances which could arise if there were no period of limitation. We of course have to strike a balance, because otherwise it would be grossly unfair if ancient causes of action, through someone not caring or through carelessness were to be kept hanging over someone's head. It would be grossly unfair not to have some period of limitation.
I suggest that the approach of my hon. Friend, which he has accepted in this Bill and which he has taken from the Edmund Davies Committee, is the better approach. Complicated though it may be, it nevertheless has merits which, I suggest to the House, are superior to those recommended by the hon. Member for Islington, East.

12 noon.

Mr. A. J. Irvine: I wish to express agreement with what the Solicitor-General has said. The House wants this Bill and the hon. Member for Colchester (Mr. Buck) has done excellent work in connection with it. This is a very important and useful Bill with which I was very pleased to have my name associated. It is regarded with great favour by large numbers of my hon. Friends.
As to the merits of the discussion so far, I take the view that they are with the method adopted by the Bill rather than with the method proposed by my hon. Friend the Member for Islington,


East (Mr. Fletcher). What strikes me as most important is that, if we are seriously considering this matter in the context of the general wish that the Bill should go through, there are the gravest objections to the new Clause from that point of view. it involves such a radical change in the whole method of approach to this problem—involving, among other things, the abandonment of the whole of Clause 2, because implicit in it is the discarding of the application procedure—that I doubt very much whether the House would be willing at this comparatively late stage to give consent to proposals which involve such important and radical alterations in what have been originally put forward and have received careful and thoughtful consideration in Committee.
I am certain that my hon. Friend the Member for Islington, East has no intention of doing damage to this Bill. I am perfectly aware of that, but I join with my hon. Friend the Member for Lincoln (Mr. Taverne) in asking my hon. Friend the Member for Islington, East to withdraw the Clause, quite apart from the merits, on the ground I have put forward. This House will not be prepared, I conceive, at this late stage to accept proposals which constitute a totally different approach to the whole problem from that previously very carefully gone into. The suggested approach involves inevitably so large an alteration in the rest of the Measure as the abandonment of the whole of Clause 2. On those grounds, and because we want this Bill and this is not a matter to be played with, for it affects countless very important cases of industrial illness and disease, I hope that my hon. Friend will not proceed with his new Clause.

Mr. Ian Percival: I am entirely in sympathy with the hon. Member for Islington, East (Mr. Fletcher) in suggesting that this wholly deplorable situation should be remedied. I do not think there can be a question of disagreement on that, but I am also entirely in agreement with what the Bill tries to do and with the right hon. Member for Llanelly (Mr. J. Griffiths), who said he hoped that it will complete all its stages today.
The questions implicit in and raised by the proposed new Clause are questions of how far one should go and

the methods by which one should make what is now to be provided available. As the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) said, if this proposed new Clause were accepted it would necessarily replace Clauses 1 and 2 of the Bill as drafted, with the result that rather different rights would be given and the pursuing of those rights would follow a different course. Many technical reasons have been given for not accepting this alteration with those consequences. I agree with those technical reasons, but I suggest that there are more than technical reasons for taking this view. My sole purpose in intervening is to call attention to two of the non-technical reasons for preferring the existing procedure to the proposed procedure. I do this because I think it unfortunate that anyone should get the impression that lawyers or anyone else consider alternative proposals such as these purely on their technical merits or demerits and without regard to their wider implications.
One of the principal claims on which the hon. Member for Islington, East based his interesting argument for accepting his Clause in place of the existing provisions was, I understood, that he takes, and expressed, the view that the Statute of Limitations is a fairly procedural Act and that defences raised under it have no merits whatever.
With respect, I beg to differ from him on that. I should like to follow and enlarge upon what was said by the Solicitor-General on this point. It would be wrong if this House or the public were to be left simply with the view that those defences are purely technical and have no merit at all. I suggest that they have considerable merit.
Their purpose is to endeavour to hold a fair balance between the two parties to litigation. One cannot do better than remind the House of the three points to which the Edmund Davies Committee drew attention in this context. First, that Report pointed out that these provisions were intended to protect defendants from being vexed by stale claims relating to long-past accidents about which records may no longer be in existence and as to which their wit-


nesses, even if they are still available, may well have no accurate recollection.
That is a situation which may very well arise in less than three years. in the kind of case we are considering, where we are supposing that the action may not be brought until after three years, this situation is ex hypothesi more likely to arise. It can well produce a situation which may be almost as unfair to the defendant to allow proceedings to continue as to the plaintiff not to allow them to continue. The Edmund Davies Committee pointed out that there were at least two other reasons. I shall not take the time of the House in discussing the second one, which is that it has never been the principle to encourage litigation unduly, but the third one is more important and goes directly to the point I made that these provisions are intended to hold a fair balance between the interests.
It is that for a very long time it has been a principle of our law that it should ensure that there comes a time when a person may with confidence feel that he may treat as being finally closed an incident which might have led to a claim against him. In other words, people will not be left for ever wondering whether a claim may lie against them. Those, I suggest, are not technical reasons; they are good reasons on their merits for preserving these definitions provided by the Statute of Limitations.
What we are here trying to do does not break those principles at all. While recognising the value of those principles and that they exist to hold a fair balance, we are trying to iron out an anomaly arising under them which offends our sense of justice as ordinary human beings and as lawyers as well. For that reason I suggest it is most important that we should be careful to do just that, and to continue to try to hold a fair balance. I therefore join issue with the hon. Member for Islington, East on the question of whether the definitions we are talking about are meritorious or not. I respectfully suggest that they are.
There are other non-technical reasons for being careful to preserve this balance. I suppose that laymen as well as lawyers would appreciate and accept that commencing an action is, or at all events ought to be considered, a very solemn

and serious step. It starts a train of events which inevitably will cost someone, whether it be the taxpayer or the parties themselves, a great deal of money. That is not something which should be undertaken lightly, especially after a considerable period of time. But I wish to suggest a more human reason than that.
It may well be—those of us who are practising lawyers have experienced this—that once an action is started the plaintiff's hopes may, very humanly, but without any great foundation, be built up. Because he has an action running, he feels that it will be successful and that he will get damages. But he may not. One is told by the doctors that the tension under which a person lives the whole time that litigation is pending is a very serious thing and may well affect that person to a considerable extent. I mention this as another human, non-technical reason for saying that we ought to be very careful about the steps to be taken before proceedings are commenced after a long time.
I suggest that it is another reason for saying that what is provided by this Bill is a wise and sensible safeguard. It is not a very difficult step. We are all familiar with ex parte actions. They need not take long or be very expensive. They can be disposed of fairly and quickly. A very great discretion is given to the judges under the provisions dealing with them. I suggest that it would be fair if it were left to the courts to deal with these preliminaries expeditiously and fairly.
12.15 p.m.
It may be a handicap to someone who wishes to conduct proceedings. It is something else that a person would have to do. But I suggest that it is only a small handicap, and if one looks at this in the right way, it will be appreciated that the whole problem is how best to balance all the different interests involved, remembering that one must have some regard to the position of the defendant after a long period of time has elapsed. The provisions in the Bill are fair to both sides and, with respect to the hon. Member for Islington, East, I think they are preferable to the provisions which his new Clause would substitute for them.

Dr. Alan Glyn: I was impressed with what was said by the hon. Member for Islington, East (Mr. Fletcher) with particular reference to the disease of pneumoconiosis. These diseases are often almost impossible to diagnose or at least it is almost impossible to provide correct evidence about them in the initial years. It is true that in many cases there may be some clinical evidence, but the positive evidence which is looked for by the courts is extremely difficult to provide. For that reason I can see that there are certain diseases of that type regarding which it would be difficult for a plaintiff to establish a case.
However, as was said by my hon. and learned Friend the Member for Southport (Mr. Percival), we are called on to strike some sort of balance in those cases where it is difficult to diagnose and at the same time to give a fair time interval for the employer, so that he will not have lost track of the evidence. One has to look upon the matter as establishing a fair balance between employer and employee. I feel, therefore, that we should not accept the new Clause, especially because at this late stage it would make such a fundamental change in the Bill. It is in my opinion too late—particularly in respect of a Private Member's Bill in its passage through this House—to introduce a new Clause of this nature which would bring about such a radical change in the Measure. I can appreciate the reasons why the hon. Member for Islington, East moved his Motion and we have every sympathy with him, but on this occasion I cannot agree with the hon. Gentleman.

Mr. Fletcher: I have listened carefully to what has been said. I am still of opinion that the new Clause would have provided a better method of dealing with this problem than the one in the Bill. I say that with the greatest possible respect to the members of the Edmund Davies Committee, for whose work and labours on this subject we are grateful. But my major concern, like that of other hon. Members interested in this subject, is to ensure that the Bill shall be passed into law.
After listening to the opinions expressed by my hon. and learned Friend the Member for Liverpool, Edgehill (Mr. A. J. Irvine) and by the hon. Member for Colchester (Mr. Buck), and other hon. Members, and because I am

conscious of the difficulties which would follow were I to press this matter to a Division as it introduces a radical change, I beg to ask leave to withdraw the Motion.

Motion and Clause, by leave, withdrawn.

Clause 1.—(EXTENSION OF TIME-LIMIT FOR CERTAIN ACTIONS.)

Mr. Fletcher: I beg to move, in page 1, line 7, at the beginning to insert:
Unless the court in all the circumstances otherwise thinks fit".
This is not a major Amendment. The hon. Member for Colchester (Mr. Buck) will have appreciated from the Report of the Edmund Davies Committee that one of the solutions to this problem to which the Committee gave attention was that the court be given discretion. The recommendation of the Committee in paragraph 31 of its Report states:
The simplest proposal which we considered was to confer upon the courts an unfettered discretion to extend the three-year period in any case which appeared appropriate.
If that suggestion, which appears to have solid grounds for support, were to commend itself to the hon. Member, then it seems to me that the appropriate way of giving effect to it would be by introducing into the Clause some such words as those which I have put down. I am not convinced that my draftsmanship is perfect. It may be that I should have put down a supplementary Amendment to omit the word "not" in line 9. But the object of the proposal would be to give the court discretion. The House would be interested to know whether the hon. Member for Colchester considered this suggestion and whether there are good reasons for rejecting it.

Mr. Buck: The hon. Member for Islington, East (Mr. Fletcher) asked me whether I had considered the suggestion and whether there are good reasons for rejecting it. The answer to both those questions is, "yes". It was considered and there are objections to this course.
If he had read a little further, in paragraph 31 of the Edmund Davies Report, he would have found the objections there set out succinctly and ably. The first point which is made in this Report against giving the court unfettered discretion is that it would encourage optimistic litigants. Someone might


chance his arm. He might say, "I might be lucky with the judge". That is a phrase which one has heard on occasions. He might say, "We will try it out". That is the speculative and optimistic embarking on litigation.
That is a less fundamental objection than the next which is delineated in the Edmund Davies Report—the basic uncertainty which this course would bring into the whole of this realm of the law. We should not know the principles which the courts would adopt. We should be giving them no guidance if this were made the solution. We should have to wait until there was a body of case law built up to show the way in which the courts thought appropriate to exercise their discretion before any lawyer could give any client advice of any certainty. This body of case law which various courts would be establishing, the criteria on which they decided whether to exercise discretion, would be built up at the expense of litigants. This would leave the matter much too vague. There would be no guidance. This is the view put by the Edmund Davies Committee, and one cannot fail to agree with them that it is a substantial objection to this solution being adopted.
The solution was carefully considered by them. It has a great attraction of simplicity. If I had found any simple solutions when considering ways of tackling this problem, I should have welcomed them very much. But this proposal has drawbacks, and for the reasons I have stated I do not think it appropriate to give a court unfettered discretion.
I do not want to take technical points, but the Amendment as framed would give the court a discretion in addition to the potential litigant having to fulfil certain conditions. This would be hard on potential plaintiffs, who would have to fulfil the conditions set out in the Bill and then would have the possibility of the court deciding against them. That would be an added hardship which I know the hon. Member for Islington does not wish to introduce.

Mr. Ronald Bell: I see the validity of the objection to the wording in its context in that it mounts an unfettered discretion, an undefined discretion, on top of one which is already defined. But the

hon. Member for Islington, East (Mr. Fletcher) and I wanted to bring forward the other possible way of proceeding—that of a discretion in the court. We did that in our search for the same simplicity as inspired our last new Clause, and to try to get rid of the great complications. I think that neither the hon. Member nor myself wishes to press the Amendment very heavily at this stage, because we are conscious of the limitation of time at this stage of the Bill. That is the disadvantage of these highly technical Bills being brought forward in a way in which we feel some constraint of time upon us.
But I am not impressed by the difficulty put forward in the Report of the Edmund Davies Committee. I think that was a bad point. The court exercises its discretion in many other matters of this kind without there being the difficulties of uncertainty and chance to which the hon. Member for Colchester (Mr. Buck) referred. There is, for example, the question of leave to appeal out of time, with which we are all familiar. That is entirely at the discretion of the court, but I do not think that we find any particular difficulty in advising a client whether he has a chance of getting leave to appeal out of time in the circumstances. There are many other cases in which one deals with a pure discretion of the court only defined, if it is defined at all, by precedents and practice.

Mr. Buck: In the example which the hon. Gentleman gave of leave to appeal out of time, a substantial body of case law has been built up to indicate the principles on which the discretion would be exercised. It has taken many years to build it up.

Mr. Bell: If the hon. Member thinks that there will be no body of case law built up on this Bill he is taking, from a professional point of view, an unduly pessimistic attitude. I do not think that there would have been any difficulty in a simple provision leaving this to the discretion of the court, with perhaps a little guidance in the Bill, and I should have preferred that method. I am glad that the hon. Member for Islington, East, put it forward, for it should be on the record that this has been considered not just by the Committee but by Parliament. One might come back to this in the


end, because I think that it would work well and simply. We shall never get away from the difficulty of such possibilities of being lucky with the judge or unlucky with him. That is inherent in the whole process at every stage of any action.
I believe that we should have had considerable certainty here. We should quickly have got the feel of the kind of circumstances in which leave would be given. If we are not to give the right under Section 26 which we proposed in the new Clause, I should prefer leaving the matter to a pure discretion, whereas the middle road will be one of exceptional complication.

Mr. Fletcher: In view of what has been said and the explanation given by the hon. Member for Colchester (Mr. Buck), I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Fletcher: I beg to move, in page 1, line 12, to leave out paragraph (a).

Mr. Speaker: I should point out that the survival, or failure, as the case may be, of the Amendment in page 2, line 35, to leave out Clause 2, will depend on the fate of this Amendment.

Mr. Fletcher: This is a substantial and very important Amendment, because, as you point out, Mr. Speaker, the proposal is not merely to omit subsection (1, a). A corollary, if the Amendment is carried, as I hope it will be carried, is that it would be necessary to omit Clause 2.
This is probably the most serious aspect of the Bill and one which the House should consider most carefully before reaching a decision. It will be observed by those who have studied the Report of the Edmund Davies Committee that that Committee thought it right, after some hesitation—and the hon. Member for Colchester (Mr. Buck) has thought fit to adopt that suggestion, I imagine almost entirely because it was their suggestion—to introduce into the Bill, as a condition of removing a hardship on which we are all agreed, the obligation on the kind of plaintiff we are considering of satisfying two conditions before he can bring an action. As the Bill stands, he has to satisfy the

court, first that he has a good cause of action at all, and secondly that there are good reasons why this exception from the ordinary law of limitation applies to him. In other words, he has to satisfy the court that prima facie there are good reasons why he could not possibly have known at the time when the action arose that it did arise.
12.30 p.m.
Let us therefore consider whether on principle it can be said that it is either reasonable or just that these very onerous conditions should be imposed on an intended plaintiff which are not imposed on any other plaintiff. Many actions are brought, for various reasons and with various prospects of success. Every plaintiff has to decide, before he issues a writ or is advised to, what is the likelihood of success; what is the weight of his evidence; and what evidence could be brought by the defendant, about which he cannot ever be certain when he starts.
By Clause 2 we are going a long way to whittle down the rights which it is the main object of the Bill to confer on these workmen—miners and others—who suffer this kind of disease and all plaintiffs in this category. We want to put them on an equality with all other people who have a cause of action because of personal injuries. If Clause 2 is to stand, they are not put on an equality. They will not have the same right as every other citizen of the realm has of bringing his action. Like everybody else he has to take the chances of success and the hazards of not knowing the defendant's case. In the ordinary way a plaintiff does not have to produce his evidence until a later stage of the trial. He has the right to adduce further evidence after he has issued his writ which is not in his possession at the time of the issue of the writ. This class of people are denied these advantages and opportunities enjoyed by the ordinary citizen. A man in this class cannot bring an action, unless he goes through the process of first satisfying the court by the production of evidence on oath that he has a prima facie case, both on the merits and on the point under the Limitation Act.
Why should he have to do that? It throws an additional burden on him. It makes him hesitate perhaps doubly before he exercises his rights. It may give the


defendant an opportunity of knowing well in advance what case he has to meet. It would seem also to deprive the plaintiff of the opportunity of adducing further evidence at a later stage. If he brought an action in the ordinary way he might succeed, but he may find that under this procedure for same reason or other he cannot overcome this first hurdle. He may find that he cannot satisfy the judge for some purely technical reason or other and therefore cannot get his action started. It is quite wrong in principle that this unusual burden contained in Clause 2 should be put upon him. The object of the Amendment is therefore to delete Clause 1(1)(a) and the whole of Clause 2.

Mr. W. R. van Straubenzee: As I have not previously had the opportunity of catching your eye at this stage of the Bill, Mr. Speaker, may I in prefacing what I have to say on the Amendment make clear and underline that I, too, most warmly support the general principles of the Bill? I am as emphatic as any other hon. Member in trusting and believing that the House will in due time give it a Third Reading, because it clearly contains most advantageous provisions.
I hope that my hon. Friend the Member for Colchester (Mr. Buck), who has promoted the Bill with such distinction, will devote careful thought to the argument advanced on this point by the hon. Member for Islington, East (Mr. Fletcher). This is exactly the sort of point which will come before those whose duty it is to advise persons affected by the Bill in the first instance. That is why this is so particularly appropriately raised by the hon. Member for Islington, East, who, as we all know, is an active and practising solicitor. It falls to that profession, of which I myself am a junior member, to seek to advise those who one trusts in due time will have the advantage of these provisions of the general procedure lying before them and the hurdles, as the hon. Gentleman called them, over which the case has to be got.
I am not clear that I understood one or two matters in relation to Clause 2 which arose out of an earlier exchange between my hon. Friends the Members for Colchester and Buckinghamshire, South (Mr. Ronald Bell). I should like

to be a little clearer than I am. For instance, as I understood it, my hon. Friend the Member for Colchester was emphatic that these provisions would be operated by way of affidavit evidence. I should be very gateful if my hon. Friend would make it more clear why he is able to be so emphatic about this.

Mr. Buck: I was not emphatic about it. The words I used, I think—we shall see them tomorrow—were that that is what is expected—that is, expected by me and by those with whom I have discussed the matter. One is at a loss to know of any other ex parte proceeding which is not by way of affidavit but where there is oral evidence. In the last resort, oral evidence can be given on ex parte applications. However, I am at a loss to think of an ex parte application which is otherwise than on affidavit.

Mr. van Straubenzee: I am obliged to my hon. Friend. I may very well have misunderstood how emphatic he was. He has greatly helped me by partly clearing up that point. It had left in my mind a slight doubt as to exactly how this was to be handled.
Although I think that hon. and learned Members sometimes find this a little difficult to understand—this is a point I have made on a number of occasions—there are a great many persons who are affected by the provisions of various Acts passed by Parliament who have a very real fear and anxiety at having to take part in legal proceedings. This is a fear which we meet in our branch of the profession—not only in this matter, but in other matters—fairly frequently. To erect a second hurdle or a preliminary hurdle—the obtaining of the leave of the court—at first sight seems regrettable in that context. I hope that when my hon. Friend the promoter replies he will be able to deal fairly fully with this aspect.
I quite realise what, in general, my hon. Friend's argument will be. This point was not discussed in detail in Committee because the Committee stage did not take very long, and my hon. Friend was then very frank, though not on this point, in expressing himself as having considerable confidence in the interpretation of the courts. Speaking as a member of the


legal profession. I am sure that he is absolutely entitled to have that confidence.
The important point, however, is that this provision, and other provisions like it, is directed towards persons who, if one may say so without a hint of superiority, make no pretence—why should they?—of knowing anything whatever about the law and its workings, and it therefore behoves us, in legislating for something of a very humble nature, to make the provisions as uncomplicated as we can. That is why I think the Amendment, which has allowed us to have just a brief look at the provisions of Clause 2, is of great value, and why I hope that we may be satisfied beyond doubt that the provisions of the Clause as drawn are those that should now be agreed to.

Mr. Taverne: I hope that my hon. Friend the Member for Islington, East (Mr. Fletcher) will withdraw his Amendment and, instead, support that in page 2, line 40—leave out from "if" to end of subsection (2) and insert:
it is satisfied that the requirements of subsection (3) of the preceding section in relation to that cause of action have been fulfilled".
As the Bill stands, a plaintiff would first have to prove that he came within the special provisions of the Limitation Act; that he could not have discovered the injury in the time. Secondly, he would have to prove that he had a prima facie case on merits. I support that second point, and I hope that it will be carefully considered by the hon. Member far Colchester (Mr. Buck). In regard to the first point, I do not support the Amendment, although I have no particular objection to it. On this question, a balance has to be maintained between the disadvantage of delaying actions indefinitely and the tremendous hardship that is suffered by some plaintiffs in certain cases to which reference has been made. Hardship is sustained by some defendants in having to meet a case long after the normal period has passed, and it is reasonable to provide that the plaintiff should prima facie show that he could not reasonably have discovered his injury in time. There is no great hardship in that. He has only to produce an affidavit, with a doctor's certificate attached to it saying that he is suffering from pneumoconiosis and could not

have discovered that fact more than twelve months before the time.
If this Amendment is carried, the whole Bill may run up against certain snags. At the moment, it has the support of both the National Union of Mineworkers and the employers, but if the Amendment is carried it may be felt that the Bill leans too much against defendants, and difficulties will be raised in the Bill's further stages—

Mr. Fletcher: Would my hon. Friend tell us whether he really thinks there would be any opposition from any interested quarter if the Amendment were passed?

Mr. Taverne: I discussed this Amendment with my hon. Friend the Member for Bedwellty (Mr. Finch) last night, and I think he agrees that there is some force in saying that, in some circumstances, if the provisions are too hard on employers, objections will arise.
It is no great hardship on a plaintiff to produce an affidavit with a medical certificate attached to it. If the Bill as it stands is something that the National Union of Mineworkers is willing to accept, why should we not act on the basis of what all those concerned will accept? For these reasons, I hope that the point that a plaintiff must prove a prima facie case on the merits of the action will be acceptable, but that the present Amendment is not accepted.
The Committee stage of this Measure, because of general agreement, lasted less than one and half hours. There is, at the moment, general agreement between all the parties affected. I hope that hon. Members will not use this Bill now in order to delay the discussion of the next Bill on the Order Paper. I hope that they will not, in effect, filibuster, and bring this House into disrepute—

Mr. Speaker: The hon. Member is going beyond the rules of order relating to this particular Amendment.

Mr. Taverne: Then I hope that this Amendment will be withdrawn, and that the Amendment standing in the name of my lion. Friend the Member for Bedwellty will later be accepted.

12.45 p.m.

Mr. Buck: This Amendment raises matters of great interest and, as the hon.
Member for Lincoln (Mr. Taverne) has just said, we have to consider that the Bill represents an effort to maintain a balance between the position of plaintiffs and that of defendants.
The hon. Member for Islington, East (Mr. Fletcher) said that the Bill as framed took away from the rights of every person by providing for this preliminary procedure. At the moment, a person who does not know that he has been substantially injured is in the unfortunate position of being debarred by the Limitation Act because of the effiuxion of time. He now has no right at all, because it is a profound principle of law that we should do nothing to encourage or help stale claims. We must bear that principle in mind as the background of the Bill.
This Measure makes very great inroads into the principles of limitation that have heretofore appertained, as was recognised very fully by the Edmund Davies Committee. Paragraph 17 of that Committee's Report states:
… it is intended to protect defendants from being vexed by stale claims relating 'to long-past incidents about which their records may no longer be in existence and as to which their witnesses, even if they are still available, may well have no accurate recollection.
If one is dealing with claims that are stale, in the sense that the word is used in the Report, one has to consider whether it is not appropriate to give added protection to defendants.
This Bill breaches the whole limitation principle quite substantially, and we have to decide whether it is right to keep the balance by protecting defendants from those cases that have no substantial merit in them. That was the approach adopted by the Edmund Davies Committee, and it has a lot to recommend it. The Committee stated that:
Relaxation in proper cases of the three-year rule in favour of plaintiffs must impose an additional burden on defendants. We think it would be a mistake if this burden were increased by opening the gate so wide as to let in a flood of cases which are not truly within the categories with which we are concerned.
The Committee then considered three ways of dealing with the problem.
We first have to decide whether the Edmund Davies Committee was right in considering whether there should be

a balance between the protection of plaintiffs and the protection of defendants. It is appropriate that there should be, as it were, some quid pro quo, and it is frankly that which is accorded to defendants because they are having a protection removed from them. I suggest that it is not an unreasonable proposition. It would seem that so strongly was this the view of the Edmund Davies Committee that it considered most carefully other ways in which this balance could be accomplished—and those ways are set out in paragraph 33.
The Committee went so far as to consider whether, in certain circumstances, an additional burden of proof should not be imposed on plaintiffs by making it the same as that which appertains in criminal cases. That would be a very heavy burden to place on them—as I see the hon. Member for Islington, East recognises—but their even considering this course indicates how serious the Committee thought the position to be, and how important that a balance should be kept.
The Committee then considered whether corroborative evidence should not in all circumstances be required of the plaintiff. My recollection is that it determined that if it were to be properly enforced this action would be too harsh to potential plaintiffs. It then arrived at the solution which I have sought to adopt in this Bill, namely, a sort of filter procedure applicable before heavy expenses are incurred by anybody—as my hon. and learned Friend said earlier this will not be a lengthy or excessive procedure—to see that unmeritorious claims do not come before the courts and defendants are not put to unnecessary expense.
That is the basic principle of this. I recognise that there is much to be said on either side relevant to the whole of the problem, but I recommend to the House that the balance between the rights of plantiffs and defendants should be safeguarded. I think that we can deal with the other matters which appertain to this Amendment on a later Amendment put down in the names of the hon. Members for Bedwellty (Mr. Finch) and others. The principle on which this Bill is based is that there should be a balance kept between the rights of plaintiffs and those of defendants.

Mr. Fletcher: The hon. Member has referred to unmeritorious claims. In the ordinary course, a person is entitled to bring an action if he thinks that he has a meritorious claim. He does not have to satisfy a judge. No doubt plenty of actions are brought that may be unmeritorious. but people are entitled to bring unmeritorious actions if they think that they have a chance of success.

Mr. Buck: People are at the moment entitled to bring unmeritorious claims, but the question that we are considering is whet1ier they should be entitled to bring unmeritorious claims when they have the added confusion of being unmeritorious claims of antiquity. Here we are giving people a new right. At the moment, a citizen has no right at all to brine an action, meritorious or otherwise, after the effluxion of the limitation period. We are giving a new right here, and it would seem appropriate that there should be some procedure to try to make sure that defendants are not put into the very great difficulties that they are sometimes put by having to meet such stale claims, claims that may not have any merit in them. That is the point that I have been trying to make.
I submit to the House that it is one of some substance. How effective is the filter procedure laid down in my Bill and put forward by the Edmund Davies Committee I am frankly in some doubt. I think, however, that it will be effective in weeding out certain unmeritorious claims, which it ought to do, because defendants ought not to be put to expense in dealing with stale claims of that nature. How really effective it will be, time will eventually tell.
We look forward with great interest to the discussion which will follow if this Bill goes to another place where, with great respect to everyone here, there is a vast weight of legal knowledge, and I hope that the legal Lords will participate in the debate.
One realises that there are two sides to the question. The safe course, I suggest to the House, is to adopt the compromise recommended by the Edmund Davies Committee and allow this Clause to remain without the Amendment.

Mr. Ronald Bell: I cannot bring myself to regard a claim for personal

injuries brought after three and a half years as a stale claim. This is to some extent where we see these things a little differently. I agree that I am starting from the point of view that I never really liked the reduction of the six years' period to three years in cases of personal injury. I thought that it was a mistake, and what we are doing today is in some degree the consequence of it.
I take a slightly different view as to how the balance should be struck between the plaintiff and the defendant. After all, if somebody has caused injury to somebody else by his wrongful act, I find it hard to understand why so many obstacles should be put in the way of the person who is seeking redress, simply because the consequences of the wrongful act cannot be properly assessed until a certain period of time has passed. It seems to me that the injured man who is put in that position is not really someone who has been guilty of neglect or delay such as to put him at the mercy of the legal process. He comes to the court with clean hands, and he should stand on the same legal basis as any other litigant going to the courts. That is the way I look at it, if, in accordance with the provisions of Section 26 of the Limitation Act, he is coming to court out of time, outside the ordinary limitation period, but is able to say that he is seeking to rectify the consequences of a mistake that is not the fault of the defendant, but simply a mistake. He is not subjected to any of this screening process. He has not to prove a prima facie case. He has not to satisfy a judge on application that he had no means of earlier knowledge.
Of course, it can be objected to in the course of the action that he does not come inside Section 26, and if he does not—well, he is unlucky; but the law does not impose this system of check upon him. Why should there be this special arrangement for people who are extremely analogous to those who are seeking to correct the result of a mistake? The mistake from which they are seeking relief is that they thought, wrongly, that they had suffered no appreciable physical injury from the wrong that was done to them. The mistake in fact is exactly parallel to the kind of mistake already covered by Section 26 of the Limitation Act. The parallel is so close, so obvious,


that one inevitably asks: why these special provisions?
After all, when an application is made. these matters will remain to be decided in the action. The court may give leave, perhaps, both on the ground that there is a prima facie case and upon the ground that the plaintiff had no earlier opportunity of knowing about the decisive facts. Then, when it comes to the actual hearing, the court may reverse both those prima facie findings. Neither is disposed of and finished with by the application. The whole thing—both legs of it—has to been fully considered in the action, and the decision may go either way. So this is an extra process added to the normal legal proceedings in this kind of action and it is one imposed only on this particular kind of plaintiff. This is why hon. Members on both sides of the House ask: why? One does not, I think I may say, get a really satisfactory answer. The hon. Member for Lincoln (Mr. Taverne), who is no longer in the Chamber, has, I think, got rather too closely inside this matter. He seems to feel that it is really a private arrangement between the National Union of Mineworkers and the British Employers' Confederation.
1.0 p.m.
This arises, of course, with particular urgency because of the pneumoconiosis issue, which certainly closely affects the National Union of Mineworkers and employers in industry. However, the Bill is not concerned only with pneumoconiosis cases, for it is of quite general application. It should not really mean that because what are described as the "interested parties outside the House" have agreed on a certain bargain or compromise about this hon. Members should not inquire into it and suggest any changes.

Mr. Harold Finch: The hon. Member said that there had been some bargain or compromise arrived at between the unions and the employers. That is quite incorrect and I hope that the hon. Member will withdraw that statement. There has been no compromise or bargain concerning the Bill.

Mr. Bell: I was merely repeating words that have already been used.

Mr. Finch: No one said anything about a bargain.

Mr. Bell: I agree that the word "compromise" was not used, but there was nothing improper in my use of the term. I was not criticising anyone or suggesting that something had happened that should not have taken place. There is no reason why there should not be wide consultation or why people outside the House who are particularly interested in this matter should not agree among themselves on the kind of legislation they would like to see. All I was saying was that the hon. Member for Lincoln should not say that because that had been done we should not upset it. That was the only point I was making and, in fact, the hon. Member for Lincoln said it himself; and the hon. Member for Bedwellty (Mr. Finch) knows that.
As I was saying, not only pneumoconiosis but all sorts of other things arise. Indeed, the illustration given by my hon. Friend the Member for Colchester (Mr. Buck) was that of a road accident in which someone had been knocked over and thought that he had merely had a bump but later found that he was suffering from intra-cranial injuries. Thus we must consider everyone and not only the rather special circumstances of an industrial disease.
The industrial disease point actually gave rise, as is known, to the setting up of the Edmund Davies Committee and, accordingly, it has been rather essential to everyone to place special emphasis on the question of industrial diseases. All I am saying is that we must look at the whole sphere and think of everyone who may be affected by the Bill. It is possibly true that, in the pneumoconiosis kind of case, an affidavit with a medical certificate attached might be—I do not say it necessarily would—all that was needed in the screening process. However, there are other cases of a different character where the prima facie evidence which would be called for under sub-paragraph (a) would be of a different character and might be quite harsh, even perhaps oppressive, for the would-be plaintiff.
I feel, therefore—and I agree with the hon. Member for Islington, East (Mr. Fletcher) on this—that this requirement of an application for permission to bring an action should come out—that is, subparagraph (a) and Clause 2, because we


are discussing the two Amendments together—and that the plaintiff should bring his action as of right. He would, of course, have to bring himself within the requirements of Clause 1(3) which sets out the facts of his not having had an opportunity of knowing about the decisive facts within the limitation period.
That seems to be a simple and practical method of proceeding and I hope that it can be adopted. I appreciate that this is the Report stage of the Bill and that we are not in Committee. However, I and a number of other hon. Members were not on the Standing Committee and this is the first opportunity we have had to bring forward Amendments. I dare say that it went through quickly in Standing Committee, but, as the hon. Member for Lincoln said, that does not mean that we cannot bring forward Amendments now in an effort to assist in the deliberations of the House and, perhaps, even make some slight gloss on the agreement reached between the National Union of Mineworkers and the Employers Confederation.

Mr. Finch: There was no agreement.

Several Hon. Members: Several Hon. Members rose—

Mr. Deputy-Speaker: Order. To whom was the hon. Member giving way?

Mr. Bell: The right hon. Member for Llanelly (Mr. J. Griffiths).

Mr. J. Griffiths: The hon. Member for Buckinghamshire, South (Mr. Ronald Bell) has been constantly talking about an agreement. The National Union of Mineworkers, at the invitation of the authorities concerned, had a representative on the Edmund Davies Committee. It is known that the union is anxious for the Bill to be passed. Nevertheless, we shall endeavour to make some Amendments to it later. The hon. Member has repeated his remarks about an agreement five times. Once would have been enough—and that once would have been incorrect.

Mr. Bell: I did, in fact, mention it only once or twice. The subsequent three times have been in dealing with interventions. If the right hon. Gentleman does not want to labour the point he should not intervene about it. I only said that there was this agreement because I think that the hon. Member

for Lincoln said that they were agreed about it. I am not suggesting that someone sat down and drew up a document; merely that I understand that they agreed about it. It may be that the parties concerned have not even been in touch with each other. Nevertheless, they are in concurrence, if I may be permitted to use that word. I do not quite know the difference between "concurrence" and "agreement", but I mean to say that they think the same about the subject.
I think that the hon. Member for Lincoln was making the point that since the people concerned—I believe that he said those who were "directly" or "primarily" concerned—both felt the same way about it, it would be better to keep the solution as proposed. I am not making an adverse point and, in fact, am rather on the side of the right hon. Member for Llanelly (Mr. J. Griffiths). He may like to know that I shall be supporting his Amendment later. I hope, therefore, that he will not quarrel with me too much about this now because we may find ourselves in disagreement about something which had not previously occurred to either of us. I am sure that we both wish to remain allies on his later Amendment.
This is a broad matter in which many points must be taken into consideration and I think that there are hon. Members on both sides who feel that this procedure might be a little too oppressive for the general run of plaintiffs who might find themselves in this position. For that reason I hope that the House will consider the Amendment of the hon. Member for Islington, East sympathetically and that my hon. Friend the Member for Colchester will reconsider it.

Amendment negatived.

Mr. Buck: I beg to move, in page 2, line 15, to leave out from "was" to before "in line 19 and to insert:
after the end of the three-year period relating to that cause of action or was not earlier than twelve months.
This Amendment meets, and does so entirely, a point which was raised in Committee by the hon. Member for Bedwellty (Mr. Finch). It was, in fact, the first Amendment tabled and when it was discussed in Committee I undertook to look art the matter again. I have done so and am glad to inform him that,


having been convinced by his argument, I have tabled the Amendment.
As the Bill is drafted, a person can bring an action so long as it conforms with the matters we have already dealt with when discussing an earlier Amendment—that is, that the real damage done to him has remained outside his knowledge, either up to the end of the three-year period or, to use the old formula in the Bill, that it
… was so near to the end of that period that it would not have been reasonably practicable for the plaintiff to bring an action, in reliance on those facts, before the end of that period …
That is the formula at present. The point raised by the hon. Member for Bedwellty was that the person might be in some difficulty if he were to discover the real nature of his injury towards the end of the three-year limitation period. He might be in some difficulty and, as the hon. Member for Bedwellty suggested, it would be better to have an element of certainty in this matter rather than a formula which the court would have to determine as to whether it was so near to the end of that period that it would have been reasonably practicable for the plaintiff to bring his action.
The merits of having a fixed period were delineated by the hon. Gentleman, and I have been convinced. I have had the discussion that I said I would have with my hon. and learned Friend the Solicitor-General and, in spite of the fact that in Committee my hon. and learned Friend said that he was not convinced that twelve months was the right period and that it might have to be a shorter period, nevertheless I understand that he, like me, has come round to the view that twelve months is a satisfactory time. This gives certain added advantages, perhaps, to potential plaintiffs. Therefore, I commend this Amendment to the House.

Mr. Finch: I thank the hon. Member for Colchester (Mr. Buck) for agreeing to the Amendment which we moved in Committee. I think it will be of considerable help and that it will remove some of the ambiguities which might arise if this Amendment were not accepted. I therefore hope it will be accepted by the House as a whole.

The Solicitor-General: I, too, am glad that my hon. Friend the Member for Colchester (Mr. Buck) has accepted the suggestion put forward by the hon. Member for Bedwellty (Mr. Finch) in Committee. It appears to me that there was much force in his argument, though, as my hon. Friend the Member for Colchester pointed out, I did express some reservations in Committee about the period of twelve months. However, I have reconsidered the position.
While I agree that certainty should be effected in this important matter, on reflection I think my hon. Friend the Member for Colchester and the hon. Member for Bedwellty are right. I agree with this period of twelve months and, therefore, I withdraw what doubts and reservations I had and, indeed, welcome the Amendment.

Amendment agreed to.

Clause 2.—(APPLICATION FOR LEAVE OF COURT.)

Mr. Finch: I beg to move, in page 2, line 40, to leave out from "if" to the end of subsection (2) and insert:
it is satisfied that the requirements of subsection (3) of the preceding section in relation to that cause of action have been fulfilled".

Mr. Deputy-Speaker (Sir R. Grimston): With this Amendment we can discuss the Amendment in page 3, line 9, leave out from "if" to end of subsection and insert:
it is satisfied that the requirements of subsection (3) of the preceding section in relation to that cause of action have been fulfilled

1.15 p.m.

Mr. Finch: As the Clause is drafted, a plaintiff has to produce evidence to show why he had not submitted his claim during the normal period. In our opinion, that is quite understandable. As my hon. Friend the Member for Lincoln (Mr. Taverne) has pointed out, it is only necessary for the person concerned to produce a medical certificate stating that he is suffering from a disease and as soon as possible to make an application for damages under law. We say that is reasonable enough.
However, the Bill as it stands requires the plaintiff to do more than that. He has to reveal all the details of his claim. He has to give the names of the witnesses. He has to show on what


basis he puts forward the claim for damages. In other words, he has to reveal to the defendant the whole basis of his case. We say that is unreasonable. I do not know what hon. and learned Members think about this requirement, but I know what the ordinary workman would say, and the miner in particular. He would say, "You are giving the case away before you begin". All this has to be revealed before the case goes to court. The employer would have the names of the witnesses and would know the whole of the details of the case, and we suggest that is quite unreasonable.
We are prepared to agree that if a man has not been able to make his claim in the normal period of three years, he is out of time, and that such a person should show reasonable cause for the delay. We suggest that he can do this by the production of a medical certificate. But to require, in addition, that the plaintiff must prove a prima facie case, that he must get his witnesses and show to some extent how the alleged negligence has arisen, is unreasonable because he is being asked to reveal the whole of the details of his case. That is an unnecessary burden for a plaintiff to bear. If a plaintiff brings his action within the normal time, he is not called upon to bear such a burden. Yet if he is outside the normal time he has what my hon. Friend the Member for Lincoln called this extra hurdle to jump.
It is not easy to get witnesses and submit their names. Also to go into the details of the case is a costly procedure. I do not know who is to bear the cost. Not only is this procedure unnecessary, but I suggest it is unfair, for a similar onus is not placed upon the defendant. He is not required to produce all his evidence. Therefore, the balance as between the two is unfair.
As was said in Committee, there are other aspects to this matter. In some circumstances a plaintiff might not have a prima fade case. The case might be doubtful, and might be thrown out if it went through the stages required by the Bill, though it might become a good claim when the documents in the defendant's possession were discovered.
Therefore, under the Bill as it stands the plaintiff would suffer two disadvantages. First, he would have to reveal

his evidence and the names of his witnesses, and secondly, he would not be able to carry on the action to the discovery stage where he might be able to find evidence in the form of documents in the defendant's possession which would help his case.
I hope the hon. Member for Colchester will give serious consideration to this Amendment. We on this side of the House take a very serious view of this point and we believe that a sense of injustice will be created if the Clause remains as it is. In any event, I hope that if the hon. Gentleman cannot accept the Amendment now, the Solicitor-General will say that it will be considered when the Bill goes to another place.
The hon. Member for Buckinghamshire, South (Mr. Ronald Bell) has referred to the National Union of Mineworkers and the British Employers' Confederation, but I can assure the House that there is nothing in the hon. Gentleman's suggestion. That matter does not arise. Certainly we have considered the Bill in the light of its effect on miners, and if the Bill is a good one we support it.
Indeed, we support the main features of the Bill, but I beg the hon. Member to consider what my hon. Friends, the trade unions and I regard as a flaw in the Bill. We do not want any more ambiguities. We are discussing a Bill which has arisen from an ambiguity in the law, and we do not want another ambiguity which would require the introduction of yet another Bill. I therefore ask the Solicitor-General to give serious consideration to this Amendment and, if he cannot come to a final decision today, to see that it is considered when it goes to another place. In any event, having regard to some of the things said today, I should imagine that there will be unanimous support for what I am saying. However, if we cannot have an assurance about the Amendment, we shall have to press it.

Mr. Buck: I have given this matter a great deal of thought in the past and will gladly do so again. I can give no absolute assurance, but I shall gladly consider it and, as I said on an earlier Amendment, one will hear with interest what is said by the learned Law Lords in another place as the Bill proceeds on its course.
My present feeling is that there is a great deal to be said in favour of adopting the recommendation of the Edmund Davies Committee on this matter. Mr. Justice Edmund Davies is a most distinguished and universally respected judge, who is not, so I understand, unknown to hon. Members opposite. His Committee comprised people eminent in every sphere of life connected with the problems under consideration, distinguished medical people, trade unionists, and lawyers.
The recommendations of the Committee were unanimous, and on the point now before the House the procedure provided for in the Bill as it stands was the procedure recommended by the Committee. Its view is summarised in paragraph 33(C) on page 15 of its Report:
We have tried to find some method by which unmeritorious claims can be weeded out before the defendant is put to any expense.
Pausing there, is it right that the Committee should be so searching? In my opinion, it is. We are here, as the Committee itself recommended, relating the cast-iron rule concerning limitation in favour of plaintiffs, and this imposes an additional burden on defendants. The Committee was searching to find a way by which that added burden on defendants could be mitigated without substantially affecting the genuine and legitimate rights of plaintiffs.
The Committee appears to have taken the view—it is a view which I share—that the sort of case of which the hon. Member for Bedwellty (Mr. Finch) has spoken today and which the hon. Member for Lincoln (Mr. Taverne) adumbrated in Committee should not be brought. I refer to what is known as a "fishing" claim—a term which will be well known to my hon. and learned Friends—a claim about the merit of which one is not altogether sure. A person bringing such a claim starts his action and goes to the stage of discovery, after which he either drops it or proceeds. He is fishing about to see whether additional evidence will be disclosed which may give him a chance to succeed. In my submission, this sort of claim should not be brought if it is outside the limitation period.
In a very rare case, it may be that a fishing claim which might have come off

would not succeed in getting justice, but, because of the position in which a defendant is placed in dealing at a long range of time with the claim made against him, it is appropriate, in my view, that claims which are not shown prima fade to have a basis should not be brought, because it may be much more difficult for a defendant to deal with them when there is an element of staleness about them.
In my judgment, therefore, the Committee was right in trying to discover a method by which unmeritorious claims could be weeded out. The Committee goes on to say:
The major hardship on the defendant in such cases is not that he may have to pay damages to someone who has no real claim (since, in the event, he will probably not be held liable) but that he will, if the action goes to trial, almost certainly be seriously out of pocket as a result of the costs which he may well fail to recover from his opponent.
We all know that this does comes about.
Our conclusion is that it would be practicable and desirable to require the plaintiff to persuade a judge both that he has a reasonable case on merit and that he can satisfy the tests which we have proposed in paragraph 32"—
which are to be found in the Bill.
The trade unionists and all the members of the Committee gave this matter considerable care and thought. Was it right, in allowing a plaintiff to have a new right, to put an. added burden on the defendant? I submit that there is great force in the unanimous answer which the Committee gave.
Nevertheless, I recognise that there is substance in what the hon. Member for Bedwellty has said. I shall be only too glad to look at the matter again in the light of anything said in the debate. But I cannot myself give any specific assurance, and I await with interest what the Solicitor-General will say.

Sir Frank Soskice: The hon. Member for Colchester (Mr. Buck) has said that he will consider the argument and that he awaits with interest what the Solicitor-General will say. I put the matter in this way and ask him to take these considerations into account. The relevant test in deciding whether an application to bring an action out of time should be granted is, surely, whether the would-be plaintiff has a reasonable excuse for not bringing it


within time. In other words, it is the test propounded in Clause 1(3): had he or had he not a reason which excused him from bringing the action within the prescribed time?
If he has that excuse, it is, I suggest, unreasonable that he should have to prosecute his claim under the disadvantage that the nature and scope of his evidence is probably known to the other side. This is not a disadvantage under which litigants in general have to labour, particularly litigants bringing claims for personal injuries.
I agree that the Bill puts an added burden on defendants. No doubt, this is a circumstance which will be taken into account by judges in deciding whether to grant applications and when evaluating the quality of the excuse which a would-be plaintiff advances when asking for leave. But I respectfully put to the hon. Gentleman that it is unreasonable and rather undesirable to make a plaintiff in such circumstances what is really a kind of second-class litigant, a litigant who has not the ordinary facilities but who has to put forward his claim in circumstances in which it is known to the other side so far as it depends on evidence.
1.30 p.m.
The hon. Member for Colchester said earlier that the application would be made ex parte, and subsection (1) provides that the application shall be made ex parte, but it goes on to say, as was pointed out by the hon. Member for Buckinghamshire, South (Mr. Ronald Bell), that that shall be done only when the rules of court do not otherwise provide. The rules of court may provide that a potential defendant can in some circumstances oppose the application for leave. If he opposes it, presumably he must know the strength of the plaintiff's case. He will know not only the excuse but what evidence the plaintiff can put forward to show that he has a meritorious claim.

Mr. Buck: The words
except in so far as rules of court may otherwise provide",
which were inserted in Committee as a result of an Amendment which I put down, were designed to meet the circumstances arising during the course of the trial, and that is dealt with in subsection (3). It seemed absurd that one

should cause an ex parte procedure to be indulged in by a litigant when the matter of limitation came up in the course of the trial. I recognise, however, that it would be open to the court to devise rules which did away with the ex parte procedure.

Sir F. Soskice: As the hon. Gentleman says, there is power in the Bill to that effect, but if a potential defendant is not given the opportunity of challenging the potential plaintiff's application for leave, an unfair burden is put on the potential defendant. He may wish to appear and say, "The excuse is not adequate and reasonable", and he should be heard. If he knows what the evidence is because he is present when the application is made, that puts a heavy burden on the potential plaintiff. It makes him a second-class plaintiff. He goes to court and has not the advantage which other plaintiffs have.
It may be said that the general system should be altered and that parties on both sides should have some knowledge of the witnesses which the other party proposes to call. That is not the rule at the moment. Our system does not work in that way. While we have our system, surely all litigants should be treated in the same way. Some should not be better placed to enforce their claims than others.
In these circumstances, I hope that the hon. Member for Colchester will give sympathetic consideration to the Amendment and that he will feel that the view expressed by the Edmund Davies Committee, which I agree was a Committee of great learning and authority, was perhaps mistaken in this regard. I hope that the hon. Gentleman will take steps at a later stage to have this change made.

Lady Megan Lloyd George: I am glad that the hon. Member for Colchester (Mr. Buck) has said that he is willing to look at the Amendment again, and I hope that he will be encouraged in this at a later stage by the Solicitor-General.
I strongly support the Amendment. No layman would willingly intervene in a debate in which hon. and learned Members fall out, and I do so only because I happen to represent a great many miners who suffer from pneumoconiosis. As the House has recognised on many occasions in legislation, there are very special difficulties which pertain to pneumoconiosis. The disease is very difficult of diagnosis,


not only in the early stages, but in the intermediate and later stages. My right hon. Friend the Member for Llanelly (Mr. J. Griffiths) quoted a tragic case this morning in which a diagnosis of the disease was made only years after the disease had first been contracted. These are not single instances, as all hon. Members who represent mining areas know. Sometimes the disease is diagnosed only years after the miners have left the industry and have taken up other employment.
We therefore press the Amendment because we want to eliminate another hazard. There are many hazards in the diagnosis of this disease. We say that it is not reasonable that a plaintiff should have to establish a bona fide case for damages, and that he should not have to prove a case for negligence in the first instance. The defendants would be present and would hear the case and would be prepared for the second hearing. The witnesses would have to be called.
The hon. Member for Colchester said that this is a filter procedure which would avoid unmeritorious cases being brought. But, as my right hon. and learned Friend the Member for Newport (Sir F. Soskice) said, this will produce second-class litigants. There will be two hearings and two cases. Speaking in a lay capacity, I think that we are here setting a precedent. I do not know whether this is true, but it has been put to me that it is very unusual to have a preliminary hearing of this kind in the case of people who are legally aided. I should like to know whether that is so. No doubt hon. and learned Members will be willing to throw further light on that.
The hon. Member for Colchester has handled the Bill with great skill, tact and understanding, and I hope that he will show further understanding by reconsidering a matter which we regard as being of the utmost importance.

Mr. Taverne: There are three points which I hope the hon. Member for Colchester (Mr. Buck) will bear in mind in reconsidering this matter. First, as hon. Members have pointed out, it is a serious disadvantage for a plaintiff to have to show his hand. It has been recognised as a serious disadvantage by the rules of court, which afford certain

protection to parties and prevent them from having to show their hand at this early stage. I made this point in Committee and therefore I will not elaborate it.
Secondly, the hon. Gentleman says that we should discriminate against a "fishing" claim because of this additional hardship on defendants. But there is a difference between a fishing claim and a doubtful claim. There may he many cases in which it turns out that a plaintiff has a perfectly good claim, and part of his case may rest on documents provided by the defendants or on evidence given by witnesses for the defence who are cross-examined on certain points. It may be that he is unable at the preliminary hearing, when he presents his prima facie case, to have affidavit evidence from these parties or to have evidence of these documents, although he knows that something of the sort is in existence. A number of doubtful claims which should go forward for hearing would probably be knocked out under the Bill as it stands.
Thirdly, the hon. Gentleman's objection and the objection of the Edmund Davies Committee is that unmeritorious claims should be knocked out before a defendant incurs expense, and that a defendant should not have to pay the costs out of his own pocket if he cannot recover from a plaintiff with an unmeritorious claim. This hardship on defendants is not so very great and the provisions of the Bill are not so very necessary, as the hon. Member for Colchester himself pointed out in Committee.
Most plaintiffs will need legal aid or support from their trade unions. They can pursue an action and bring it with the support of the trade unions or obtain legal aid only if they can make out a prima facie case. Therefore, the overwhelming majority of plaintiffs will have already made out a prima facie case, but they will not have been under the disadvantage of having to disclose it to the defence. Therefore, in the majority of cases, he is not, in effect, protecting defendants from unmeritorious claims which would not otherwise be brought. He is simply giving the defendants an additional advantage which they otherwise would not have. I ask the hon. Member, who himself raised the point, to bear it in mind and I hope that the Solicitor-General will deal with it.
It may be asked, what about people who do not need legal aid? Suppose that a wealthy man is knocked down by a motor car and his serious injuries do not become apparent until after three years. That case might be meritorious. If it is a wealthy man who does not need legal aid, the question of costs no longer becomes as important, because the defendant will be recompensed in costs.
The hon. Member for Colchester has asked what reason there is for discriminating against the poor, because they have to prove a prima facie case to a legal aid committee or trade union whereas the rich man does not have to do so. The answer is that this is true already in the law, because anyone who wants to bring an action can do so without merit if he has funds and must show a prima facie case if he has not. That objection, therefore, does not apply.
In the vast majority of instances, these will be cases which are brought with the support of a trade union. In such cases, unmeritorious claims will not go through, because the trade union must to some extent be satisfied that there is a case on which to proceed. A number of doubtful cases which should be brought will be excluded if the Bill remains as it is. There will not, therefore, be any real hardship upon defendants. A great disadvantage will be imposed on the second-class plaintiffs of whom my hon. Friend the Member for Carmarthen (Lady Megan Lloyd George) spoke and I hope very much that the hon. Member for Colchester will reconsider the position.

Mr. J. Griffiths: I support my hon. Friends and speak with some years of experience. In deciding whether to take a case of this kind, even at such an early stage trade unions give it careful consideration. The cases are costly and cause a great deal of work. It does not help us to lose a case. There is, therefore, a kind of filter. Nowadays, it would be either a trade union or the appropriate legal aid committee which dealt with the case. For this reason, the possibility of unmeritorious cases is apt to be exaggerated. I hope that if the hon. Member for Colchester (Mr. Buck) cannot give a favourable answer now, although I hope that be will, he

will further consider the matter possibly with a view to further action in another place.
Would the so-called preliminary trial go to the local county court? The whole question is one of cost. As I said earlier, if we are to effect this improvement, do not let us hedge and surround it with so many difficulties as to prove it in the end to be valueless. All this is a matter of cost. I hope, therefore, that the Solicitor-General will consider the matter and that if he is adamant that the Clause must remain unchanged, he will tell us to which court the prelinimary trial would go.

The Solicitor-General: I purposely delayed speaking on this important Amendment because I was anxious to hear everything that was to be said about it. This is an important matter and hon. Members who have spoken have shown not only great feeling but considerable force of argument.
I hope that hon. and right hon. Members will bear with me while I put some of the matters which should be taken into account. We have to consider that we do not legislate only for the general—I accept that the general must be the pneumoconiosis kind of case and one in which, perhaps, the person concerned is a member of the National Union of Mineworkers or some such organisation—but we also have to legislate for the particular case.
There could easily be cases concerning defendants who did not have anything behind them in the way of an organisation, who might well find themselves in the position of having a very late claim brought against them, and a claim which they would find it extremely difficult to meet. Therefore, although I accept that the majority of cases which arise in such circumstances are cases such as those which have been illustrated here today, we have to consider carefully the fact that unfairness could be created for a defendant in particular circumstances.
1.45 p.m.
It is for that reason that a balance, about which hon. Members have spoken, must be kept between the rights of plaintiffs, including plaintiffs who in the past have had these rights not properly, in the view of most of us—satisfied, and


the rights of defendants. All would accept that in any proper administration of the law there must be a principle of limitation to prevent stale cases coming before the courts, not only because of the difficulty which is thereby imposed on the courts, but also because of the hardship and unfairness that can be imposed upon defendants.
The demands of justice are twofold. It is often believed that justice demands only the acquittal of a person, but justice demands the conviction of the guilty and it also, on occasion, demands the denial of damages to a plaintiff if that is just. These are the matters which must be taken into account when by this legislation we breach the principle of limitation, which, we accept, is a principle that must be there because of particular cases and of circumstances which arise bearing in mind certain decisions.
The Committee under the chairmanship of Mr. Justice Edmund Davies clearly had in mind the possibility of unmeritorious claims. The members of that Committee were experienced in all fields in this respect. They dealt with unmeritorious claims and they appeared to be satisfied that there were a considerable number of persons who make claims which are unmeritorious. It has been said against them, however, that for a hearing in such circumstances, the person concerned would have probably to seek legal aid and, therefore, establish a prima facie case or, as the right hon. Member for Llanelly (Mr. J. Griffiths) said, get the assistance of his trade union.
In such a case, however, a trade union might well say, "We will give you assistance because, if you establish a prima facie case before the judge, we will be satisfied that you will be able to go on. If you fail before the judge, very little expense will have been involved." Therefore, the trade union would not be put to great expense and, in addition, the person would have the possibility of seeing whether a prima facie case existed.
I accept that that means revealing the evidence and putting such a litigant into a different position. The right hon. and learned Member for Newport (Sir F. Soskice) spoke of the second-class litigant. What I would rather say is that

it puts a litigant in such circumstances on certain terms. Because we are breaching and defeating the usual principle of law with regard to limitation, a person is required to carry out certain other functions and certain other burdens are put upon him.
Those are some of the reasons which must have driven the Edmund Davies Committee to form the view which it did. They are some of the reasons which must have influenced my hon. Friend the Member for Colchester and which occur to me in listening, as I have done, with the greatest care to the arguments advanced by right hon. and hon. Members opposite.
The last time I came to a passage of argument with the hon. Member for Bedwellty (Mr. Finch), he convinced me as to half his case during the debate and convinced me of the other half of it when I had an opportunity for reflection. I am, therefore, chary of coming up against the hon. Member too fiercely. Having heard what has been said here today, I will certainly from my own point of view, look at this matter again. I was glad to hear what my hon. Friend the Member for Colchester said. I think it is worthy of the most careful study, though I am sure that it must have had careful study by the Edmund Davies Committee, as it certainly has from myself. But I would say further that, having studied this, and having looked at it again, if we were to come to the conclusion that it might be necessary to tender different and further advice to my hon. Friend, we certainly would take the opportunity to do it in another place. I want to make it clear to hon. and right hon. Gentlemen that for my part I will certainly carefully bear in mind every single thing which has been urged on my hon. Friend by hon. and right hon. Gentlemen in the course of this debate.

Mr. A. J. Irvine: I would wish to say, as one who supports in principle the Amendment of my hon. Friend the Member for Bedwellty (Mr. Finch), that we are very glad to have heard the Solicitor-General on this point and to have heard him deal with the matter in the fashion which he has. The hon. Member for Colchester (Mr. Buck) very naturally and very wisely said that he would wait to hear the advice which was to be given


to him by the Solicitor-General, and it is all the more satisfactory to us to have heard the Solicitor-General himself say that he will look at this matter again. Although, of course, I appreciate that he has put forward arguments for leaving the language of the Bill in its present form, none the less he has assisted us by indicating that this matter, the seriousness of which he recognises, is going to be looked into again.
I am glad of that and I venture to bring forward one circumstance which I hope due weight will be given to when that further consideration is given both by the Solicitor-General and the hon. Member for Colchester. In raising this I am conscious that I did not have the advantage of participating in the discussion of this Clause in the Standing Committee, and it may well be that points occurring to me have been, in the thoughts of some at any rate, sufficiently deployed, but I desire it to be observed how moderate is the effect of my hon. Friend's Amendment. It is a moderate Amendment. I know he feels very strongly about this and that those for whom he speaks feel very strongly about it. I acknowledge, and I hope that hon. and right hon. Gentlemen opposite will acknowledge, the moderation of the Amendment.
Why do I say that? It is not merely that this Amendment raises no objection in principle to the whole concept of the preliminary application. He accepts that it is relevant to that. He acknowledges that it is an instance of avoidance of the limitation provision, and he is prepared to acknowledge in these circumstances that there should be an application for leave. Be it observed that the effect of his Amendment is to leave it essential before action can be initiated that the court entertaining the application shall be satisfied that the requirements of Clause 1(3) are fulfilled. These requirements go very far, as I understand it:
The requirements … are fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge of the plaintiff until a date which …".
My hon. Friends are conceding a good deal, in my view of the matter. They are raising no objection to inquiry into the facts, because they acknowledge that the material facts have to be ascertained.

They are prepared to concede that it is a proper matter for inquiry, to which they raise no objection, whether these facts are of a decisive character within the meaning of that subsection (3).
That is the point I wanted to stress. If ever there was a moderate Amendment, this is a moderate Amendment, and many matters to which no unreasonable objection might have been taken are outside the provision presented by my hon. Friend. This is the factor I would ask to be given due weight to in the further consideration of the provisions of this Clause, the concept which my hon. Friends, very naturally and rightly, in my respectful view, are anxious about, the concept of the second trial, the double inquiry.
There are those words
in the absence of any evidence to the contrary".
I do not want to go into this at great length. That wording is well understood. Those words provide a very considerable safeguard, undoubtedly, in the kind of case about which my hon. Friend has expressed anxiety. None the less the anxiety is there, widely and sincerely felt, and I hope that the factors to which I have ventured to draw attention, as well as other factors to which attention was drawn by others, may carry some weight when the wording of this Clause is given final consideration.

Mr. Buck: As the hon. Gentleman opposite seemed to indicate a wish for a further word from me, perhaps I may say a word, by leave of the House.

Mr. Deputy-Speaker: The hon. Member in charge of the Bill has a right of reply.

Mr. Buck: I have listened with great care and appreciation to all that has been said on both sides of the House and I repeat the assurance which I gave earlier. I repeat it with great confidence having heard what my hon. and learned Friend the Solicitor-General has said. Of course, it is a difficult matter. One does appreciate the power of the arguments which have been put forward by hon. Gentlemen opposite, but I think that they themselves will acknowledge that it is a matter in which there are arguments on both sides. One would gladly reconsider this matter. I will strive to arrive at a conclusion which


will be satisfactory to hon. Gentlemen opposite. In view of what the Solicitor-General said, that he further will consider it, we will both do that. It would be wrong of me—for I might mislead the House—to make any firm undertaking beyond the undertaking that we will look very carefully at this matter and pay heed to all the many powerful arguments put forward by hon. Members on both sides.

Mr. Fitch: In view of the assurance given by the hon. Member for Colchester (Mr. Buck) and of the remarks of the Solicitor-General that further consideration will be given to this in another place, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7.—(INTERPRETATION OF PART I.)

Mr. Fletcher: I beg to move, in page 7, line 12, to leave out from "regarded" to the end of line 17, and to insert:
as giving him (apart from any defence under section 2(1) of the Limitation Act 1939) a good cause of action".
This is merely a drafting Amendment, and the intention of it is, I think, obvious from its words. It seems to me that it would reduce the hardship of a plaintiff if in this interpretation Clause it were provided that for the purposes of this Bill any of the material facts relating to the cause of action should be taken as facts of a decisive character if they were facts which a reasonable person knowing those facts, and having obtained advice with respect to them, would have regarded as giving him a good cause of action.
Surely it is not necessary to provide, as the Bill does, that he should have regarded them as having a reasonable prospect of succeeding with a resulting award of damages. If a plaintiff thinks he has a good cause of action, then in the ordinary case he is entitled to bring his action. Some people are perfectly entitled to bring an action even though they know at the outset that the odds may be against them. I am most anxious throughout the Bill that the plaintiffs who are affected by it will not be worse off than any other plaintiffs. That is the object of the Amendment, and, with

that explanation, I hope that the hon. Member will consider it sympathetically.

2.0 p.m.

Mr. Buck: One of the difficulties about accepting the Amendment will, I am sure, at once become apparent to the hon. Member for Islington, East (Mr. Fletcher). It is an objection of a similar nature to that which I raised on the proposed new Clause. As phrased, the Amendment would prevent anybody from having a cause of action in the terms of the example which I quoted earlier. This is because the Amendment involves a good "cause of action", and this, as I see it, would severely restrict the rights which a potential plaintiff would have in the way I have indicated and would have the reverse effect to that which the hon. Gentleman intends.

Mr. Ronald Bell: I wonder whether my hon. Friend the Member for Colchester (Mr. Buck) is right about that. Here one is dealing with a requirement before the man has leave to proceed. If we narrow that we merely help the plaintiff. I think that my hon. Friend has slightly misconceived the argument.
I saw my hon. Friend's argument quite clearly in relation to the new Clause moved by the hon. Member for Islington, East (Mr. Fletcher). As my hon. Friend rightly pointed out, there one had to bear in mind the occasion when the person knew that he had a good cause of action from the beginning but did not know that he had suffered any damage. To leave out those words in that new Clause constituted a blemish, which we discussed at the time.
But in this context to leave out a reference to a substantial amount of damages has not, I think, the same effect. Leaving it out merely widens the screen and allows more to pass through. It cannot react to the detriment of the plaintiff as could the omission in the other case. This time it is the other way round, and it is not, therefore, a serious difficulty.
If the hon. Member's Amendment were accepted, the plaintiff would get leave to proceed if he showed facts such that a reasonable person knowing about them would think that he would have a good cause of action. If we raise the standard and say that the man must have a good cause of action and would obtain substantial damages, we are increasing the


burden which the plaintiff has to discharge. So I think it is the opposite way round to what my hon. Friend was saying.
The hon. Gentleman's proposal is in aid of the plaintiff and not damaging his interest, as my hon. Friend seemed to think. Obviously, if we reduce the test which the plaintiff has to satisfy, we allow through some plaintiffs who otherwise would fail the higher test. Under this test the plaintiff would get through if he could show that he would have a good cause of action, even though he did not show that he would recover substantial damages.
The issue of the Amendment is simply whether a would-be plaintiff ought to have to satisfy the court on his application that he would obtain substantial damages. One could answer that either way according to how one sees the merits of it. However, on this I share the view of the hon. Member for Islington, East in not seeing why a would-be plaintiff should have to show that in these circum-stances when no other would-be plaintiff has to show it. It is as simple as that. Why should we load on to the would-be plaintiff here this quite exceptional and, I think, unprecedented burden?
My hon. Friend will no doubt say, as he said in answer to previous Amendments, that the man is out of time and is at the mercy of the court and asking for a favour. I do not see it like that. This man is someone who has suffered an injury and did not, and could not, know about the effects of it for a period of years because the effects were hidden, and he must already have satisfied the court that by no reasonable vigilance could he have known about them. Therefore, if he has done that, and if he has been injured by the wrongful act of somebody and has suffered some injury in consequence of it and could not have known that the consequences were going to flow, why should he now have to satisfy the court on ex parte application that he would recover substantial damages?
It does not seem to me to be a very equitable operation. The phrase "damages sufficient to justify the bringing of the action" is one which seems to argue for itself and anybody who argues against it appears almost by definition to be unreasonable. The point which the hon. Member for Islington,

East, I think, and I both wish to make clear is that this is not the kind of thing that one should ever ask a plaintiff to satisfy the courts about before he brings his action. It is as short and as simple as that.
I hope that my hon. Friend will not put it aside on a misconceived argument about the effect of it on the plaintiff but will bear in mind that this really is a constructive proposal to improve the Bill.

Amendment negatived.

Mr. Fletcher: I beg to move, in page 7, line 27, to leave out paragraph (c).
Might we discuss with this, Mr. Deputy-Speaker, the three following Amendments, in line 29, after "might", insert "reasonably"; in line 29, leave out "or inferred"; and in line 30, leave out "all"?

Mr. Deputy-Speaker (Sir Robert Grimston): The Amendment to line 30 will not now he called because it was to have been discussed with an Amendment which the hon. Member for Islington, East (Mr. Fletcher) has not moved. But with this Amendment the House may discuss the two Amendments in line 29.

Mr. Fletcher: This will be convenient, Mr. Deputy-Speaker, because I can then make my point in one speech instead of in three speeches.
What worries me about paragraph (c) of Clause 7(5) is that it seems to put every possible handicap in the way of the plaintiffs whom we are trying to help with the Bill. The hon. Member for Colchester (Mr. Buck) and other hon. Members will realise that the whole of the effective part of the Bill is governed by Clause 1 which provides that the Limitation Act does not apply if it is proved that certain material facts were outside the knowledge, actual or constructive, of the plaintiff until a certain date. Therefore, it is obviously important to define what a material fact is and when such a fact is outside the knowledge of the intending plaintiff.
The definition Clause seems to me to be extremely rigid against the plaintiff because it says, in effect, that a fact shall be taken to have been outside his knowledge "if, but only if" and so on. Perhaps the hon. Member would explain


whether the words "but only if" have any value or merit at all or are intended to qualify the matter. Either the plaintiff did not know the facts—that is obvious—or he was not capable of having ascertained them. I think that is reasonable.
I should like to omit sub-paragraph (c) altogether. Why is it necessary to say that a fact should be taken into account if it was outside the knowledge of that person? This part states that a fact shall be taken as outside the person's knowledge if he did not know
… there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice. …
This seems an extremely onerous burden to put on people who by definition we are seeking to help. Either we should omit sub-paragraph (c) as unnecessary or improve it by inserting the word "reasonably" so that it would read:
… that fact might reasonably have been ascertained …
I suggest that we delete altogether the words "or inferred", because I find it difficult to understand how any court could ascertain circumstances in which a reasonable person might, with some knowledge, have obtained appropriate advice, having inferred certain facts. I wonder whether any court has ever before been asked to interpret a complicated provision of this kind, putting itself in the position of having to decide whether a person, if he had taken appropriate advice, would have learned something from it, from which he might have inferred something else, and who, having done all that, would then be denied the protection the Bill is intended to give. This raises doubts which trouble me about this Clause, and I hope that the hon. Member will either be able to accept my Amendment or will undertake to reconsider this matter.

Mr. Buck: I admit at once that I share some of the hon. Gentleman's misgivings about this part of the Bill. He raised the question of the words "but only if" and asked if their presence had any significance. Their presence is undoubtedly in the interests of clarity. An earlier Amendment put down by the hon. Gentleman to omit those words was not moved by

him, but if the words had been deleted I do not think that it would have made any difference to the meaning. They are there only for clarification.
On reflection, I have doubts as to whether subsection (5, c) contributes materially to the Bill. If the hon. Gentleman is agreeable, I would like further opportunity to consider it. But at the moment I hope that it will be left in the Bill. I would have no objection to the exclusion of the words "or inferred", and perhaps that would make it a little more acceptable to him. I am optimistic that in another place this part of the Bill, which is not entirely satisfactory, may be rephrased to make for greater simplicity. My present thought is that what is wanted is met by subsection (5, a and b). The purpose of drafting subsection (5, c) was to make it clear that the potential litigant should seek appropriate advice. It was thought necessary to have subsection (5, c) in for that purpose. However, in the light of my assurance, I hope that the hon. Gentleman will agree to withdraw his Amendment. I would, however, gladly accept his Amendment to delete the words "or inferred".

2.15 p.m.

Mr. Ronald Bell: I was glad to hear what my hon. Friend the Member for Colchester (Mr. Buck) has said, because it helps us. I feel that what has gone wrong here is that subsection (5, c) tries to say too much. The further one tries to define these things, the greater the complication one can get into. I have the feeling that when this gets to another place, and is considered in the more relaxed atmosphere there, something like the words "or ought to have known" will be found to meet the case.
It is when one subdivides that trouble arises. Originally, subsection (5, c) was intended to refer to medical advice. Everyone then was thinking of pneumoconiosis, because it would be absurd if the man concerned did not know of his condition because he had not been to a doctor. However, as the provision is drafted it applies not only to doctors but to every other kind of advice a man might get. It would therefore be rather burdensome.
My hon. Friend will certainly meet my wishes if he reconsiders this, not just in the light of this Amendment but also in the hope of finding a short phrase to


cover the situation. If he is unable to find a short phrase, I am not sure that the words "or inferred" should be left out, although my name is on the Amendment. If we are to proliferate various possibilities, then we shall have to have these words. I thank my hon. Friend for what he has said and I have no doubt that the hon. Member for Islington, East (Mr. Fletcher) will make the appropriate response.

Mr. Fletcher: I am glad that the hon. Member for Colchester (Mr. Buck) has agreed with me in expressing considerable misgivings about subsection (5, c) and that he has given an undertaking to reconsider it. I hope that that at least will do something to satisfy some of my hon. Friends that a number of these Amendments we are considering are not frivolous. I am not sure of procedure whereby a promoter of a Private Bill in this House may ensure that Amendments in another place are properly considered, but no doubt the hon. Gentleman will find out.
I hope that when the Bill comes back to us we shall find that subsection (5, c) has been deleted. In that hope, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 8.—(EXTENSION OF TIME-LIMIT FOR CERTAIN ACTIONS.)

Mr. Buck: I beg to move, in page 8, line 19 to leave out from "was" to "before" in line 23 and to insert:
after the end of the three-year period relating to that right of action or was not earlier than twelve months".
I need not detain the House long on this matter. It is an entirely consequential Amendment dealing with the Scottish provisions of the Bill. It has the same effect, according to those learned in Scottish law, as an earlier Amendment which I moved in relation to English law. It meets a point put by the hon. Member for Bedwellty (Mr. Finch) in Committee.

The Solicitor-General: As my hon. Friend the Member for Colchester has pointed out, this again is merely a drafting Amendment which arose from indications made in Committee by the hon. Member for Bedwellty (Mr. Finch). It applies to Scotland and corresponds

to the Amendment made to Clause 1 (3). I commend the Amendment as it is clearly to make the machinery of the Bill correct. I think it a necessary Amendment which should be agreed to.

Mr. Buck: If I may be permitted to add to what I said earlier because I did not deal with the point at great length, I should say that this is the first opportunity we have had today of dealing with an Amendment relating to Scotland. This Amendment is to produce in Scottish law the desirable alteration put forward by the hon. Member for Bedwellty in Committee. I trust that it will have the result which it anticipates. From what the Solicitor-General has said it would appear to be the case that that is what it effects. I hope that any hon. Members opposite who have knowledge of Scottish law may be able to assure me that it is the effect which I believe it has.

Mr. Ronald Bell: Can my hon. Friend explain what effect the Amendment would have?

Mr. Buck: The effect, as my hon. Friend may recall, is to amend the provision in the same way as in the English part of the Bill by deleting the provision by which, if a person got to know these matters so near to the end of the limitation period, it would not be practicable for him to bring an action. It was felt by the hon. Member for Bedwellty that this would introduce an element of uncertainty which was undesirable. It was adumbrated in Committee by the hon. Member and accepted on both sides that certainty should be introduced.
Now we have the new formula that either it was after the end of the three-year period relating to that course of action, or not earlier than twelve months before the end of that period. This introduces the element of certainty which was thought necessary and desirable and which I trust will be acceptable to the House.

Mr. Ronald Bell: I thank my hon. Friend for that explanation. I listened carefully and I do not think I understood a word of it because it relates to the law of Scotland, but I am at least assured that my hon. Friend has given due consideration to it. I hope he may have in mind when this Bill goes to another place that the whole of the


transitional provisions of the Bill require a great deal of attention because they are extremely obscure to those who have not read them carefully and they are very difficult to understand.

Amendment agreed to.

Order for Third Reading read.

[Queen's Consent, on behalf of the Crown, signified.]

Motion made and Question proposed, That the Bill be now read the Third time.

2.25 p.m.

Mr. Buck: Perhaps I may be allowed to apologise for the way in which I dealt with the Amendment relating to Scottish law. I was waiting for the presence of a right hon. Gentleman in the House to assist me on a technical part of the matter.
We have spent a great deal of time today on this Bill. I welcome that fact, but I do not intend to delay the House further with a long Third Reading speech. The reason that most of us are in this House is that we want to do the best we can in the way we think appropriate to see that there is a just society and the rule of law and that our law makes for justice between citizens. From time to time—albeit rarely—a deficiency in our system is revealed. Such a deficiency in our system was revealed relative to the limitation of action. This was brought into perspective by the case, which has been referred to many times, of Cartledge and Jopling. In that case several plaintiffs had been, in the words of The Times report of the House of Lords decision, "regretfully denied justice". When anyone in this House hears of anyone being denied justice this House is wont to act as speedily as it can.
I hope the House will forgive me for having some minor personal satisfaction in the fact that the day after the report of the case of Cartledge and Jopling appeared in The Times under the heading "Denial of Justice", this Bill was published. On this occasion I do not think the House can be accused of acting in a dilatory fashion relative to an injustice. The Bill seeks to remedy the injustice revealed by the Cartledge and Jopling case by seeing that a person who

sustains an injury or contracts a disease which thereafter remains dormant or quiescent shall not have the time running against him to prevent him being able to bring an action.
The Bill covers two classes of case. The first is the case involving pneumoconiosis and other like diseases affecting the lungs. It is a matter of satisfaction to me that the Bill should be of assistance to the mining community and those who from time to time work in a polluted atmosphere. If I may be permitted a short personal digression, I should say that in the last war my father, through the logic for which the Army is famous, being an East Anglian, was sent to France to become adjutant of the Second Battalion of the Monmouthshire Regiment. This brought him into close contact with members of the mining community. I have been brought up in an atmosphere in which there is great admiration for that community and for that reason I find satisfaction in the fact that we can help that community by this Bill.
A second class of case is concerned with persons who have the misfortune to sustain a slight injury, perhaps a small knock by being run down by a car, and think nothing of it until, three years and one day later, it is found that a most serious injury or disease has occurred through the apparently trivial accident. That injury might involve an intercranial tumour. For this reason the Bill is in the interests of all my constituents and to the community generally. I am most grateful to the House for the way in which I have been able to see the Bill through Second Reading, Committee, Report, and—in a short time, I hope—Third Reading. I also express appreciation to all hon.Members on both sides of the House who have given me very considerable assistance and to all who have assisted me in the drafting of this not so easy Measure.

2.30 p.m.

Mr. Finch: I welcome the Bill particularly as it implements the recommendations in the Report of the Edmund Davies Committee on the question of the limitation on actions for personal injury. There has been a flaw in the Statute of Limitations which has had the effect of depriving injured workmen or their dependants of statutory common


law rights. After the Report of the Edmund Davies Committee I should have thought the Government would have taken on the responsibility for introducing this Measure. But the task has been left to the hon. Member for Colchester (Mr. Buck) who has carried it out with great ability. I should like to congratulate the hon. Gentleman on his success.
We shall give this excellent Measure our support and the hon. Member for Colchester will have the satisfaction of knowing that he is responsible for a piece of legislation designed to remove an injustice which has been suffered by injured men and their dependants because, through no fault of their own, a claim for damages in respect of injury or disease has been out of time. We appreciate the necessity to have some time limit within which an action must be commenced. Since 1954 that limit has been three years, and men suffering from pneumoconiosis and similar diseases might not have bean aware that they had contracted the disease. By the time they found out it was too late to make a claim for damages.
We were reminded by the hon. Member for Buckinghamshire, South (Mr. Ronald Bell) that the provisions in this Measure do not relate only to the mining industry. There have been cases of men suffering injury from handling radio active material and being unaware for a considerable time that they were contaminated. Hon Members will agree that it is unfair that a man suffering from a disease should be robbed of the opportunity to claim his rights under common law. I am sure that all hon. Members will give this Bill a unanimous Third Reading because we do not like to feel that an injustice is being committed. There are other matters to which I should have liked to have referred. But I think I have said enough to warrant the unanimous support of this Bill by hon. Members.

2.35 p.m.

The Solicitor-General: Hon. Members, like other human beings, believe that the piece of business in which they are interested is of the greatest importance. But I do not think that any hon. Member would be so ungenerous as to fail to confirm what has been said by the hon. Member for Bedwellty (Mr. Finch). This

is an important Measure and we are extremely grateful to my hon. Friend the Member for Colchester (Mr. Buck) for selecting this Bill to introduce after his success in the Ballot and for the skill and ability with which he has conducted it through the various stages. My hon. Friend has performed a most worth-while task, and I strongly commend the Bill to the House.

2.36 p.m.

Dr. Donald Johnson: I wish to join in the tribute paid to my hon. Friend the Member for Colchester (Mr. Buck). For a comparatively new Member, my hon. Friend has performed his task in a masterly manner. It is true that the provisions in this Bill do not relate only to people suffering from pneumoconiosis. A number of medical conditions resulting from injury and accidents are also involved, will be known by those interested in dealing with grievance cases.
I should like to think that this House was always as prompt as the hon. Member for Colchester represented it to be. On this occasion the House did act promptly. For a number of years there has been agitation over cases such as are dealt with by this Bill and representations have been made by the Society for Individual Freedom, which has done sterling work. The case of Mr. Bryant, a meter reader, was discussed in this House. Mr. Bryant was found to be suffering from mercury poisoning resulting from his contact with electricity meters. Oddly enough, evidence thought to be in his favour eventually lost the case for Mr. Bryant because it was established that his condition had started three years sooner than was thought to be the case. On technical grounds, therefore, he lost his case.
A constituent of mine, a railway worker was injured while working in the shunting yards and after seven or eight years his injury proved fatal. All that his widow received was a donation of £20 or £30 from a benevolent fund. One must comment that the way in which nationalised boards have seen fit in the past to plead the Statute of Limitations in relation to such cases is appalling.
This Bill will have the effect of regularising the matter and providing equity in cases, of which there is a wide range, where delay is involved in respect of a


medical diagnosis. I should like to take the opportunity to thank my hon. and learned Friend the Solicitor-General for the manner in which he received the Bill.

2.39 p.m.

Mr. J. Wells: I am not a lawyer, a doctor or a trade unionist. Speakers representing those three professions have dominated our discussions. But it is right that such learned and experienced gentlemen should debate a matter about which they know a great deal. In these days of scientific and technological processes and progress many new items are being handled by workers. In my constituency, and in areas similar to the consistency of my hon. Friend the Member for Colchester (Mr. Buck), fruit growing processes are carried out which involve the use of chemical sprays. There are many possibilities of new diseases and disabilities open not only to agricultural workers who handle these substances but to the farmer and his family and their neighbours. I believe that in the countryside today there is grave danger of new complaints of this kind and of secondary effects of half-understood chemical processes.
I therefore welcome wholeheartedly the Measure, which I believe will be of far wider benefit in the community than the narrow sphere of mining which has been suggested. I am glad that my hon. and learned Friend shakes his head in agreement, for I take it from this that he, too, believes that it will be a Measure of wider importance. I welcome it wholeheartedly.

Question put and agreed to.

Bill accordingly read the Third time and passed.

MATRIMONIAL CAUSES AND RECONCILIATION BILL

As amended (in the Standing Committee) considered.

New Clause.—(DIVORCE ON GROUND OF SEVEN YEARS' SEPARATION.)

(1) A petition for divorce may be presented to the court either by the husband or by the wife on the ground that the parties to the marriage have separated and thereafter have lived apart for a continuous period of at least seven years immediately preceding the presentation of the petition, and there is no reasonable probability of cohabitation being resumed.

(2) A petition may be presented on the ground aforesaid (in this section referred to as the "ground of separation") notwithstanding that the separation was brought about by the action or conduct of one of the parties, whether constituting desertion or not and not-withstanding that there was in force between them at any material time a decree of judicial separation or an order having effect as such a decree or an agreement to live apart.

(3) A decree of divorce shall not be pronounced on the ground of separation if it appears to the court that by reason of the conduct of the petitioner, whether before or after separation began, or for any other reason (including any doctrinal or conscientious objection by the respondent to divorce as such), it would in the particular circumstances of the case be harsh and oppressive to the respondent or contrary to the public interest to pronounce a decree on that ground.

(4) Without prejudice to subsection (3) above, the court may refuse to pronounce a decree on any petition on the ground of separation until the petitioner has made such provision (if any) for the maintenance or benefit of the respondent and any child to which section 26 of the Matrimonial Causes Act 1950 applies as the court thinks proper in the circumstances of the case.

(5) Where petitions for divorce presented by both parties to a marriage are before the court, the court shall not, upon either of those petitions, pronounce a decree on the ground of separation if it can properly pronounce a decree upon the other petition on any other ground; and for the purposes of this subsection an answer praying for divorce shall be treated as if it were a petition for divorce.

(6) Subject to the provisions of this section the court, if satisfied on the evidence that the case for a petition presented on the ground of separation is proved, shall pronounce a decree of divorce, and if not so satisfied shall dismiss the petition; and section 4 of the said Act of 1950 (except so much of subsection (1) as requires the court to inquire into the facts alleged and any counter charge) shall not apply to such a petition.—[Mr. Abse.]

Brought up, and read the First time.

2.42 p.m.

Mr. Leo Abse: I beg to move, That the Clause be read a Second time.
The Clause more precisely and perhaps more elegantly puts into effect the intention of the Standing Committee which, by its majority, accepted the principle of the original Bill, a principle involving a seven-year separation, but was more attracted to the from in which this has been done under the five-year provisions now working so effectively in Australia, a Christian member of a multi-racial Commonwealth. The Clause approximates to the Australian legislation but provides even greater


safeguards and certainly is much more sensitive to religious beliefs than either was my original Clause or is the Australian legislation.
In brief, by this Clause any party to a marriage who has lived separate or apart from his other spouse for a continuous period of seven years can apply to the courts for divorce but, as hon. Members will see from the terms of the Clause, there is no question at all of an automatic decree being granted even though the other party, the respondent, does not object. In subsection (3), it will be observed, there are stringent requirements, and a duty will fall upon the courts to be satisfied in the particular circumstances of the case, having taken into account doctrinal or conscientious objection by the respondent, that divorce would not be harsh and oppressive to the respondent or, indeed, contrary to the public interest. Moreover, the court would be able to refuse a decree until a man had brought his maintenance up to date. If one examines it closely, it is not surprising that in some quarters it has been commented on as a very mild reform.
Yet this mild reform embodied within the Clause arouses and has aroused formidable opposition. At present, if a suburban wife, married for years, with a dozen children, in a moment of madness has a quarter-of-an-hour's adultery with the milkman, the husband can obtain a divorce. If a woman, afflicted with boredom, suddenly says to a much-married husband, "Goodbye. You weary me", and leaves him, then within three years the husband can claim a divorce. If a husband, married for years, irritated with the chatter of an empty-headed wife, vigorously smacks her about the head a number of times over a number of months, it is possible for that woman to bring to the court a petition on the grounds that he has been guilty of cruelty.
Why, then, when all this is possible in England and Wales, has this Clause, which, as hon. Members will see, permits divorce to take place in marriages so dead that the parties have been apart, often by mutual consent, for more than seven years, aroused so much opposition? The Times has told us that for the first time in history the Churches of all denominations—albeit presumably for a brief moment only—have come together

to make a doctrinal pronouncement condemning the Clause. Archbishops and bishops in Press and on television have, week in and week out over the last month, attacked this Clause or the principle of the Clause, complaining that someone bringing in what they have described as such valuable reconciliation Clauses should be so utterly misguided as to bring in this attempt to give legal recognition to the fact of sepulchred marriages.
The President of the Divorce Court felt so passionately about this modest little Clause, which is far removed from the permissive laws which characterise all the Christian countries of our E.F.T.A. allies, that, in total breach, in my view, of constitutional etiquette he plunged into a partisan attack upon the Bill, apparently having forgotten that he ever quit this House and has become a judge whose duty it is to interpret the law and not to usurp the function and duty of the House.
A stranger to this land, knowing that it is not a theocratic State, knowing perhaps that Archbishop Cranmer in the sixteenth century specifically recommended what this Clause implements, may wonder what is the reason for all this strange clamour. The hon. Member for Plymouth, Devonport (Miss Vickers) has recently come back from the United Nations. She has told me how at this moment scores of nations are occupied in considering radical alterations to their own divorce laws.
Why, then, this clamour? Is it perhaps, as I believe, that the real reason is that the Clause if it became law would be the first attempt to emancipate divorce law from all the humbug and pretence which, in my view, exists because divorce law is now choked by the doctrine of the matrimonial offence? At all costs they are seeking to maintain the fiction that in every divorce there must always be a so-called guilty and a so-called innocent party. To maintain this fiction the present law requires that a charade must be conducted even if it allows the party perhaps morally responsible for the breakdown of a marriage to masquerade as the one who is legally innocent.
At present the law directs that if two parties want a divorce, then to maintain the myth that divorce can never be obtained by consent in this country one


of the parties must affect to commit adultery or must commit adultery or must declare that the matrimonial home has been quit without the consent of the other or must not defend extravagant allegations of cruelty. Nothing but honesty can prevent two parties to a marriage at this moment in this country, who want a divorce, from obtaining one. Solicitors and judges are deceived regularly. How many of the decrees in undefended cases of desertion and cruelty could possibly be granted if they were defended?
But the sanctimonious, defending, they claim, the sacrament of marriage, attack this little Clause, saying that two people who have honestly signed a separation agreement for ten or twenty years must never be granted a divorce because to permit this would be permitting divorce by consent. To what further point could hypocrisy be pushed? The more I think of this problem the more I realise the origin of the profound difference of view between those who support the Clause and those who are against it. I believe that there is a difference between us. I know that hon. Members on both sides believe passionately in the justice of their case. The difference is this: the opponents of the Clause conceive of marriage as a sacrament in its own right, permanent and indissoluble. I believe, and I believe most of those who support this Clause believe, rather that marriage is an institution rooted in the family.
Once that view is taken, important consequences follow. One of them is that, if the state of the marriage is inimical to the welfare and health of the family and the children, or the children, then on this earth, whatever may be the position in Heaven, it should be possible for the marriage to be dissolved. I believe that the true significance of marriage is not only in the ceremony, be it in a church, a synagogue, or a registry office. It is cohabitation in love and affection in the home of the family. When that has been irrevocably ended, as clearly nearly always must be the case when the parties have been apart for seven years, in the name of rationality how can that marriage be described as having any reality on this earth?
Frankly, the Clause introduces consequentially the principle that the state of a marriage is to be looked at. The

Clause implies that the law must recognise that adultery is usually the symptom or the sequel of a marriage which has already broken down, not the cause of a breakdown. Opponents of the Clause, recognising that this is a departure, as indeed it is, from the medieval, ecclesiastical law, recognising that we are applying our minds to the state and condition of the marriage rather than to symptoms of its breakdown, are clearly frightened by its novelty.
In fact, in my view, those who oppose this Clause are surely, although I know they sincerely believe otherwise, bringing marriage itself into contempt. Thousands of people are living now in permanent cohabitation debarred from marriage because they are still tied to partners whom they married decades ago, oft-times in their youth. A high proportion of them, as I well know from the thousands of letters I have now received, are casualties of the First World War and the Second World War. I know that many of them—indeed, most who have corresponded with me—are old people, people in their sixties, seventies and in many cases in their eighties, who have written to me saying that before they meet their Maker they wish to regularise their relationship and to legitimise their children. By compelling them to live together without hope of marriage, does one instil greater or lesser respect for marriage?
No law can mend marriages broken seven or more years ago, unfortunately, or compel the ending of illicit unions founded on mutual love and respect and children. Judging by the comments of Sir Jocelyn Simon, one would imagine that middle-aged and elderly men remain married to partners of their own age only because if such husbands left their wives a divorce would be unattainable to them. This is an extraordinarily pessimistic view, in my opinion, of the relationships governing married partners.
My own experience is that the longer I am married the more I enjoy it. I am pleased to say that this is the experience of the overwhelming majority of our community. That is why 93 per cent. of the people who get married have permanent marriages and there is no question of divorce. This is not because of the laws that insist upon monogamy. Middle-aged people have happiness in


their marriages, not because of laws. It is because the enjoyment of marriage does not fade with age. On the contrary, for the overwhelming majority, understanding and maturity, the shared moments of sorrow and ecstasy, the common interest in children, the vissitudes overcome together over the years, the shared memories—all these make marriage a deeper relationship as the years go on. It is love, not laws, that keep middle-aged and elderly men and women together in a happy monogamous relationship. Those who think, if I may adopt the words of Sir Jocelyn Simon, that in the autumn of their lives men will abandon their wives if this Clause is passed and go off, wait seven years, and then in the winter of their lives obtain a decree and remarry some young chit have a very curious view, in my view, of what life is like among middle-aged married couples.
If this Clause is rejected, who will benefit? Certainly no blameless wife, for the Clause is hedged in, some would say, with so many excessive safeguards that no blameless wife could ever be affected. The person who would benefit is the man or woman who, afflicted with envy, greed, spite or neurosis, refuses to release a partner and will be able to continue to deny freedom to a spouse whom perhaps he or she has not seen for over a decade and condemn him or her to be in an ambiguous status. Above all, those who will suffer if this Clause is rejected are 200,000 little ones, born into permanent but illicit union who, without this Clause, are condemned, in my view, to be brought up in an atmosphere of guilt and deceit and never to be legitimised.
I have always regarded my Bill as a Bill not about divorce but about family. I have always regarded this Clause, as all the other Clauses, as designed to give greater stability to family life. This Clause I have brought in primarily for the benefit of children, but it is quite clear, and it has been vigorously expressed outside and inside the House, that there are many who think otherwise. It has been indicated to me by those Members of the House who fully share the views expressed in the statement issued by the Church leaders that, if I pursue this Clause, using the procedural devices properly open to them, this Bill will be talked out. That would

mean that not only this Clause but all the other Clauses of the Bill, most of which, as the House knows, are designed to promote reconciliations, will all be consigned to limbo. That would mean that not even the little help that could be made available legislatively to help the welfare of family life would be made.
Because of this consideration, because I must put this before my pride and my passionate belief in the morality of this Clause, with a heavy heart my sponsors and I have no alternative but to yield to the duress imposed upon us. I am aware that this may cause deep disappointment and grief, as it does to me, to many thousands who hoped Parliament would release them from their present plight. I hope that they will be a little heartened by the understanding shown by so many in the national controversy this Clause has aroused and be assured that the sponsors and I will keep on trying on future occasions—perhaps in a fresh Parliament—to change what we believe to be wrong in the present law.
If, therefore, the opponents of the Bill—I know that there are Members such as the hon. Member for Woking-ham (Mr. van Straubenzee) who is in a position to speak for many Members who are opposed to me—indicate that, should this Clause be withdrawn, they will give as much help as is within their power to put through the valuable reconciliation and other Clauses in the Bill, with the most profound reluctance I, because I have no alternative, and my sponsors too, at that stage will perhaps be able to ask the House for leave to withdraw the Clause.
I am aware that some may say that I should not indicate this but should sacrifice all the Bill rather than accept a truncated Measure, but I hope that the House, and all those hon. Members on both sides who have so generously supported the Bill will, if the assurance that I am seeking is given, grant me that leave, although I realise that they will be as reluctant to give it as I shall be reluctant to ask them for it.

3.0 p.m.

Mr. Norman Cole: We all appreciate the statement of his views expressed by the hon. Member for Pontypool (Mr. Abse) and, later,


his acceptance of an inevitable position, but I must point out that much of his pleading was very special. He spoke of the trouble for children in families where the marital atmosphere is inimical, but did not mention the atmosphere in those homes where there is a divorce. He referred very much to what happens when parties are separated for seven years and one of the parties does not wish for a divorce at all, but said nothing at all about what worries many hon. Members on both sides—the reluctant divorced person who did not wish for divorce but has undergone it, irrespective of the caveats contained in the proposed new Clause, because of what would be the process of law. All of this is rather special pleading for the Clause and, with great respect, it does not state the whole case fairly.
I rest my own very strong objections to the Clause—and I know that my objections are as strongly shared by many hon. Members on both sides—on two grounds. First, I believe that, contrary to what the hon. Gentleman has just said, in anything we do to facilitate divorce we are hitting at the sanctity of marriage—hitting at the fundamental. To quote what is known to us all, a divorce is only an expedient; what we are really concerned with is marriage.
Secondly, even if I could accept the purport of the Clause, I could not, in ordinary common justice, accept the position that an unwilling partner to divorce could, irrespective of what they wished, have something thrust on them that would alter all the rest of their lives. I am not at all satisfied that the qualifications and safeguards in this new Clause would always necessarily work. So much would depend on the respective resources of the two individuals, on the availability of legal aid, even on the state of health—and particularly the state of health of the reluctant party.
Therefore, on grounds both of common justice and of conscience, I would have opposed the new Clause, if necessary in the Division Lobby, and I am glad that the hon. Gentleman is prepared to withdraw it. I hope that he will realise that although we respect his sincerity we think that he is wrong, and I hope that, in return, he will accept the sincerity of our views.

Dr. Alan Glyn: The object of our Amendment was to improve the Clause as it stood on the Order Paper after the Standing Committee had dealt with it, but there is no doubt that we are asking for a very real and radical change in our law. In view of the position, we have agreed that it is not possible to persuade the House to give this new Clause a Second Reading, whether or not it is desirable. Therefore, the course indicated by the Member for Pontypool (Mr. Abse) is really a method of getting on to the Statute Book those uncontentious parts of the Bill that we think are worth preserving, and so improve our divorce laws.
In considering the new Clause, we would have had to ask three questions. First: would it have been of value in legitimising children? Secondly: would it, or would it not, by removing certain obstacles, have improved the marriage bond? Thirdly: would it, or would it not, have touched deeply those who felt that, if the law was altered, it would affect their own religious beliefs? Personally, I should have thought that their own views would have been dictated by their religious beliefs, and that, for them, divorce law was not so important.
I feel that the only course open to the House now is for it to give leave for the Clause to be withdrawn, thereby enabling us to preserve some of the really good and uncontentious parts of the Bill which, in themselves, will be of considerable value in improving our divorce laws. I therefore share the desire of the sponsor of the Bill that, in the general interests of improving the law, the Clause should be withdrawn.

Mr. W. R. van Straubenzee: I intervene very briefly because the hon. Member for Pontypool (Mr. Abse) was good enough to make reference to me, I think because I was a Member of the Standing Committee examining the Bill, and, with other hon. Members on both sides of the House, was particularly associated with the opposition to Clause 1. I want, therefore, to take up the suggestion which he put to me at the end of his speech in these terms. Plainly, we have two courses of action open to us.
If the matter were to be debated fully, as a matter of this great importance well


could be, quite plainly we should make no more progress and there would be a very short debate on this very important subject. On the other hand, those who take my view have always been quite consistent about this. Up to the limit of our ability we have tried to assist the hon. Gentleman in the remaining Clauses because there is much that is exceedingly valuable in the remaining parts of the Bill, and we have tried to express that on the Notice Paper.
If, therefore, it were to commend itself to those who take the same view as I do, I would hope that we should be able so to contain ourselves that we did not attempt to answer the hon. Gentleman's highly contentious remarks, which, I know, he holds with sincerity. It must be put on record, however, that those remarks are not being answered simply out of consideration for the remainder of the Bill. If that is quite clearly understood, I hope that those on both sides who think like me—we are wholly non-party today—would on this occasion be prepared to say no more, in the hope that in the limited time available it might be agreeable to the House to give appropriate assistance to the remaining parts of the Bill.

Mr. Ronald Bell: The hon. Member for Pontypool (Mr. Abse) made a very eloquent speech setting out his point of view on this matter. I am in some difficulty because I am not quite sure what sort of action he proposed at the end of his speech. So far as I am concerned, it is not merely the new Clause to which I object, but also to Clause 1 as it stands, unreplaced by the proposed new Clause. I would at the outset want to be reassured about what the hon. Member has in mind.

Mr. David James: Surely the hon. Member must have noticed that the hon. Member for Pontypool (Mr. Abse) has himself tabled an Amendment, which a great many of us support, to delete Clause 1.

Mr. Bell: My hon. Friend is mistaken about that. The hon. Gentleman has put it on the Notice Paper and will move if he is called, but no Amendment to that effect has yet been moved.

Mr. Abse: I hope that I shall have an assurance from the hon. Member for Buckinghamshire, South (Mr. Bell)

similar to that I have kindly received from another hon. Member. I hope that that could be given; and as to the residue of the Bill, the hon. Member has my undertaking, with those who have their names to the Amendment in question, that that Amendment wall be moved.

Mr. Bell: I am very much obliged to the hon. Gentleman because that was the very point I was making. However, he will understand that it is not within his sole power to give an appropriate undertaking. I also wanted to know if those who support him in his Amendment to Clause I would consent to his moving it. I am sure that he will understand that anyone on this side who is opposed to his views must be concerned on these issues. If that Amendment were not moved we would find ourselves in a very difficult position. On that understanding I will say very little.
I find it impossible to let this moment pass without any reply to what the hon. Member for Pontypool has said. He will know that many people feel very strongly about the subject raised by his Bill. He presented his case today in a highly controversial way, as he was fully entitled to do. It would be a pity if the case for Clause 1, either version of it, were presented in so highly controversial a way and we were then asked not to have a debate on it.
I would not like it to be thought that those of us who object to his proposals for divorce after seven years' separation do so on any narrow grounds of resisting progress or of prejudice. We do so because we genuinely believe that such proposals would be wholly inimical to the institution of marriage and the happiness of the people of this country. This is a Christian country and those of us who hold the Christian religion are entitled to say that the general atmosphere of our laws should be based upon the basic tenets of that religion. Furthermore—and apart from the religious aspect—I would like to point out to the hon. Member for Pontypool that the objectives he says he has in mind are more likely to be defeated than advanced by the proposals he makes.
I have never been satisfied that to facilitate divorce is to increase human happiness or to consult the true interests


of the children. I speak on this matter not as one who has become suddenly interested in it. As the hon. Member will know, proposals of this character have been brought before the House in the past. I have never hesitated to oppose them or to give my reasons for doing so. The hon. Lady the Member for Flint, East (Mrs. White) introduced such a Bill and it has been a constant agitation. We have heard about that already.
I wish—and it is not my intention to talk the Bill out this afternoon—to state my views on the Measure. I think that the hon. Member for Pontypool overlooks the fact that the consequences of entering upon marriage, in the sense of the ease or difficulty of divorce, affect the attitude of mind with which people enter upon marriage. I have always felt that Sir Alan Herbert, a good friend of mine, was gravely at fault in that respect because in introducing his Bill in 1937 he pronounced on the principle that what happens later for the relief of hardship would never affect the state of mind in which people enter upon the estate of marriage. I am sure that that is wrong. People are really quite sensible. They know in the community around them how easy or difficult it is to get divorced.
What happens if it is easy? Every married couple runs into difficulties at some time. It is a great adventure to set up in life together and, in the years that follow, they go through periods of coolness, hostility, difficulty and the rest of it. It is of the greatest help to them to be held together by a formal bond imposed on them by themselves but recognised by the community. Children also help to hold them together but, unfortunately—as everyone knows—the presence of children is not sufficient in all too many cases to hold the parties together.
3.15 p.m.
Nobody who has any knowledge of what goes on in the community, whether as a lawyer or not, can be in any doubt that there are far too many divorces and that many of these people are divorced because they have not tried hard enough to live happily together. They have given up trying at just about the point where trying should really begin. They will never be short of phrases about the right to seek freedom and happiness.
and that kind of thing, to justify their weakness, their pusillanimity and their quick surrender. All people are held by the strength of the formal bond of marriage, and what the hon. Gentleman proposes would weaken the strength of that formal bond. It is there to hold people through the difficult times of life. If people can walk in and out of marriage, it is simply not there at all.
Therefore, on grounds quite apart from those of religious belief, I personally have always opposed any further extension of the grounds for divorce, as being contrary to the true interests of the individual, as depriving him or her of the right to bind himself or herself for life, which is a very important freedom or liberty, and as damaging to the children because it removes something which helps to keep their parents together.
Those, greatly compressed because of the circumstances, are the matters that I want to put before the House as on earlier occasions I have put them more fully. I think it is right that they should be said in answer to the hon. Member, because too easily this impression gets abroad that all motion in one direction is progress, that if we have started from a state where there was no divorce except by Parliament, and then we have extended it a bit by allowing divorce on the ground of a wife's adultery, and then we have extended it by including a husband's adultery, and bringing in cruelty and desertion, then the inevitable, right and proper progress of human society is for that process to be continued in the same direction by further extensions of the grounds for divorce. It is this rather weak kind of extrapolationism which underlines many people's thinking on this subject. I could not allow this occasion to pass today without formally and publicly challenging that attitude to these affairs, even though on this occasion I shall not further oppose the hon. Gentleman's Bill.

Mr. Abse: I beg to ask leave to withdraw the Clause.

Motion and Clause, by leave, withdrawn.

New Clause.—(PRESUMPTION AS TO CONDONATION BY HUSBAND.)

Any presumption of condonation which arises from the continuance or resumption of


marital intercourse may be rebutted on the part of a husband, as well as on the part of a wife, by evidence sufficient to negative the necessary intent.—[Mr. Abse.]

Brought up, and read the First time.

Mr. Abse: I beg to move, That the Clause be read a Second time.
This Clause does not effect any alteration in principle to that which has gone through the Standing Committee and which, of course, implements a unanimous recommendation of the Royal Commission. I think it will suffice if I indicate that the Royal Commission said that it believed that
there can be circumstances … when the fact that one spouse has had sexual relations with the other does not amount to that full forgiveness and reinstatement which in our view should constitute condonation. We recommend, therefore, that an act or acts of sexual intercourse between husband and wife, after the commission of a matrimonial offence by one which is known to the other, should raise a presumption that the offence has been thereby condoned, which presumption may be rebutted by sufficient evidence to the contrary.
This Clause implements that recommendation and places the husband in the same position as the wife.
As we all felt in Standing Committee, in so far as we recognise the position of a husband who knows that he has an adulterous wife, and recognise that he would be in some agony of mind, we would not want to do anything which would be so categorical that it would exclude the possibility of the parties sleeping together—an apprehension which perhaps would arise in the husband's mind if he thought that, by so doing, he would be prevented for ever from opening up the question of the offence committed.
I do not wish to elaborate on what is a somewhat technical matter. In Standing Committee, we had the benefit of considerable advice from the Solicitor-General, who was a mine of information and assistance to the Standing Committee in all its proceedings.
I hope that the Clause, implementing as it does in a more elegant and precise way what has already been accepted, will receive the approval of the House.

Dr. Alan Glyn: This is a quite uncontentious new Clause. It corrects an inequality and puts right an anomaly which has existed for a long

time, placing both husband and wife on the same footing. I hope that the House will accept it.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Clause 1.—(ADDITIONAL GROUNDS FOR PETITION FOR DIVORCE.)

Mr. Abse: I beg to move, in page 1, line 5, to leave out Clause 1.
In accordance with the undertaking 1 have given, and with a very heavy heart, I move this Amendment and leave it to the House.
Amendment agreed to

Clause 2.—(AMENDMENT OF LAW OF CONDONATION BY HUSBAND.)

Mr. Abse: I beg to move, in page 2, line 14, to leave out Clause 2.
This is a consequential Amendment clearly required in view of what we have already decided.

Amendment agreed to.

Clause 5.—(PRIVILEGE FOR STATEMENTS TO MARRIAGE GUIDANCE COUNSELLORS).

Mr. Nicholas Ridley: I beg to move, in page 3, line 11, to leave out Clause 5.
This Clause was discussed in Committee and in the vote at the end of the discussion the Committee was divided equally, there being ten votes on each side. The Chairman, as was his duty, gave his casting vote in favour of the Clause standing part of the Bill.
I am glad that my hon. Friends the Members for Wokingham (Mr. van Straubenzee) and for Brighton, Kemp-town (Mr. David James), who voted for the Clause on that occasion, have put their name to the Amendment to delete it at this stage. This leads me to think that, perhaps, we now have a majority for the deletion of the Clause.
The Clause gives a privilege to marriage guidance counsellors before the courts. I think that the House would wish to treat privilege with great caution, since it is a subject very much bigger than the main purpose of what is left of the Bill, and, clearly, it is not really fit to be dealt with in this way. Indeed,


privilege is a very dangerous subject—it will, perhaps, be debated next Tuesday—and it should be considered for all classes of citizens at one time rather than be the subject of special provisions in regard to marriage guidance counsellors in this Bill. For those reasons, and for the reason that we should like the Bill to go through with as much as possible that is good and not raise any matter which is contentious and not acceptable to the House on this occasion, I commend the Amendment to the House.

Mr. Abse: Since I believe that this Clause is designed to assist reconciliations in marriage, I have by no means departed from the view which I have expressed previously. I owe it to the Marriage Guidance Council and to the Catholic Advisory Council, both of which are doing valuable work in bringing about reconciliations, to make it clear that the reason that at least some of us are not pursuing this matter is not because we are not convinced of the justice of the request for this privilege which they have made to us but because we realise, having had an intimation from the Solicitor-General, that it clearly offends Government policy. For that reason, and in order to assist the passage of the Bill, I am not opposing the Amendment.

The Solicitor-General: I should make my position clear with regard to this Clause and this principle, which, as has been said, was debated in Committee. I entered into the affray in Committee and it was the only occasion on which I voted. On that occasion, I voted against the Clause, for the reasons which have been indicated by my hon. Friend the Member for Cirencester and Tewkesbury (Mr. Ridley). As I said on Second Reading, a communication by a spouse to the Marriage Guidance Council is the privilege of the spouse. Evidence on it can be given only if the spouse wishes it to be given. But this Clause would make any such evidence and any such conversations wholly inadmissible, however relevant they were and however much the spouses wanted them to be given in evidence. As I said on Second Reading, the Clause seemed to be misconceived and not one which this House should put into law.
There is a second and equally grave

reason for leaving the Clause out, which has been mentioned by my hon. Friend the Member for Cirencester and Tewkesbury, and that is that it extends the doctrine of privilege in a particular matter to particular people, and that is something which this House is very chary of doing. Indeed, it is very jealous of extending that privilege, as every hon. Member is aware.
It was for those reasons that the Government opposed this part of the Bill, and, I stress, only this part. I thought that I should give that explanation in view of what has been said on this occasion.

Dr. Glyn: We all appreciate the work done by the Marriage Guidance Council, and the Clause might have facilitated its work, but I submit that it proposes too great an extension of privilege, which is not even given to doctors, for this House possibly to entertain it.

Amendment agreed to.

Mr. Deputy-Speaker (Sir Robert Grimston): Does the hon. Member for Buckinghamshire, South (Mr. Ronald Bell) wish to move his Amendments to Clause 6, in page 3, line 17, to leave out subsection (1), and in page 4, line 1, to leave out Clause 7?

Mr. Ronald Bell: In view of the general desire to make progress with the Bill, I will not move the Amendments but will refer to them in the debate on Third Reading.

3.30 p.m.

Mr. Abse: I beg to move, That the Bill be now read the Third time.
The somewhat truncated Measure which is before us retains some Clauses which undoubtedly bring about valuable changes in the divorce law. I am sure that solicitors will be much relieved by the fact that there is an amendment of the law of collusion. The amendment which has been effected will undoubtedly result in solicitors being able to talk freely one with the other in a way that they have not felt able to do up to the present. This may mean that in some cases reconciliations will be effected. As a consequence of the amendment, there will be some diminution of the amounts which have to be paid under the Legal Aid Scheme, since it is generally agreed that it will result in fewer defended Causes.
Apart from the amendment of the law on collusion, there are Clauses which will mean that in cases of adultery, desertion or cruelty there will be no inhibition within the law to prevent reconciliation. The fact that these Clauses, popularly called the "kiss and make-up" Clauses, will, if the House now agrees, become part of the law of the land will mean that a real step has been taken by the legislature to concern itself, not only with the severance of marriage, but with the healing of marriage.
Apart from that, some of the other Clauses undoubtedly will provide protection for women against stratagems which can be adopted by a husband to give relief which properly should, and could, be afforded to them. I hope, therefore, bearing in mind that principles which have received the commendation of the Churches, among other people, are embodied within the Bill, it will commend itself to the House.

3.31 p.m.

Mr. Cole: I should like briefly to support the Third Reading of the amended Bill. I congratulate the hon. Member for Pontypool (Mr. Abse) on his work concerning the conciliation aspect and on the fact that he will, I trust, in due course have the pleasure of seeing the Bill upon the Statute Book.
The hon. Member has told us that, in the vernacular, some of the Clauses are called the "kiss and make-up" Clauses. Previously, the hon. Member used the rather more formal language that the Clauses would remove many of the inhibitions upon reconciliation which now exist. I do not mind whether we use the vernacular or formal language, but I am interested in anything which leads to reconciliation of what might otherwise be permanently separated—or divorced—parties.
I am, however, bound to say that the fruit of one's experience—I am not speaking of one's intimate, personal experience—is that no reconciliation can be effected by an Act of Parliament. This gives me the opportunity to pay tribute, as has already been done, to the many organisations of marriage counsellors, some of them under the sponsorship of the Home Office, and others from other organisations, who seek with every kind of altruism to bring parties together, not only for the sake of the children, who

are of the greatest importance, but also for the sake of the parties themselves, to ensure that the marriage can restart. How often do we find that a reconciliation eventuates and that this third party action makes possible something which otherwise would never have happened. I pay tribute to all those who have worked to this end.
Their work being done, and when this and other Bills like it are on the Statute Book, the fact still remains that we have to leave the final decision to the good will of the parties concerned. The hon. Member for Pontypool has referred to the fact that 93 per cent. of marriages are happy, and I hope that from our various debates upon the Bill the message will go out from this House to those who contemplate separation, either legally or informally, that there is still hope and that although not all is well, much is well with marriage and at all times all branches of society, from Parliament downwards, are anxious to do what they can to effect reconciliation between opposite parties who might otherwise be separated.
Again, I congratulate the hon. Member for Pontypool. The Bill, which touches the conscience of society, has at times had a difficult run and the hon. Member, like all of us, will be glad to see it become the law of the land.

3.35 p.m.

Colonel Sir Harwood Harrison: I was not on the Standing Committee dealing with this Bill but I came here today to oppose the Bill and to see that it did not get the Third Reading. 1 did this from my own convictions and also because I have had many representations from a very large number of my constituents. I am certain that their objections were all to Clause 1. Now that Clause 1 has been withdrawn I shall not oppose the Third Reading of the Bill.

3.36 p.m.

Mr. Ridley: We have come a long way from the days of Shakespeare who said that
Many a good hanging prevents a bad marriage.
I should like to congratulate the hon. Member for Pontypool (Mr. Abse) on achieving more up-to-date ways of doing this.
I think that the Bill, although truncated, provides some very useful and very valuable additions to our laws. The principle of the matrimonial offence being the sole reason for a divorce remains, and I personally feel that that is wrong and that that is what is wrong with the law as a whole. I cannot see that one adulterous adventure should be the ground for divorce. I would prefer it to be persistent rather than single, and I cannot see that it is right that seven years of separation should not be a ground for divorce.
However, that is how the Bill stands, and it only remains to me to pay tribute to the hon. Member for Pontypool for his courtesy and hard work and industry throughout the passage of the Bill to the Statute Book and to wish him well.
Perhaps I may be allowed to end with a quotation from the Bishop of Woolwich. who wrote to The Times on 8th February and said:
It would be deplorable if yet another sane attempt to reform our laws on sexual morality were talked out.
That, I am afraid, is more or less what has happened, but let us be thankful for what we have left.

3.38 p.m.

Dr. Alan Glyn: I should just like to pay my tribute to the hon. Member for Pontypool (Mr. Abse) and in particular for his having the good sense and judgment to allow his Bill to go through amended against his own very strong personal convictions for the good of the general improvement of the law. At the same time. I think the House owes a great debt of thanks to my hon. and learned Friend the Solicitor-General who throughout the passage of this Bill has been a source of very great advice and help to us all.
The Bill does a great deal for the preservation of marriages, and I do not think that anybody on either side of the House can deny that as it stands now it will have a very real effect in helping to preserve marriages merely by the alteration in the ability of both parties to seek advice on many matters, including finance. Many parties, I believe, before entering divorce will now be able to realise the full consequences of the actions they are about to take without ruining their chance or possibly later

having their divorce ruined by collusion. I think that by doing this many young people who thought that divorce was the answer to their problems may well have a chance of considering the long-term disadvantages of that action, and also, of course, by their ability to have the period of reconciliation. I cannot conceive that this Bill as it stands will not be a great advance in the law of divorce.
I shall not at this stage elaborate on Clause 1. We attempted to improve the Clause, but quite rightly the House has rejected that Clause. I hope that the Bill will have its Third Reading before the end of this day.

3.40 p.m.

Mr. Michael Foot: Having listened to all the procedure on the Bill without having said a single word, I just want to say one single word now.
I think it would have been better if those who were opposed to the principle of the Bill had opposed it on Second Reading. It would have been fairer to the country, fairer to the House of Commons and, in particular, fairer to all those people who would have been relieved from their present plight if the Bill had gone through in the form in which my hon. Friend the Member for Pontypool (Mr. Abse) presented it.
None the less, I congratulate my hon. Friend on the way in which he has presented the Measure and the passionate eloquence with which he spoke today, particularly when this must have been for all these reasons a very bitter day for him.
The hon. Member for Cirencester and Tewkesbury (Mr. Ridley) quoted Shakespeare. When I look at our present divorce laws and what has happened in the House of Commons today, I should like to quote a lesser poet, who wrote:
Oh, that in England there might be
A duty on hypocrisy,
A tax on humbug, an excise
On solemn plausibilities.

3.41 p.m.

Miss Joan Vickers: As one of the sponsors of the Bill and, I am afraid, as one who did not give adequate support because I had to go to America—that was known to the hon. Member for Pontypool (Mr. Abse)—I should like to congratulate the hon.


Member upon the courage he has shown, first of all, in attempting to bring the Bill before the House. Even though he is not satisfied—certainly I am not—with the result, he must realise that he has started something in this country which I think will continue. In other words, he has put down a stepping stone, and I am certain that in future he will get everything that he has requested today. It may take time, but public opinion is changing.
As the hon. Member mentioned, the Status of Women Commission, on which I am a representative, is studying this matter from the legal point of view—not from the religious point of view. Unfortunately, its work has been delayed this session, but we shall have the full details before the next meeting of the Commission in Geneva. I hope that this will also help people in this country to see the various ways in which other countries have settled this difficult problem.
There is reference on page 26 of the Report of the Royal Commission on Marriages to the fact that New Zealand and Australia have Measures such as we have been contemplating or hoping to get today. There it is stated that marriages which are marriages in name only are cruel to the individual and against public interest. I think that perhaps one of the things that we have been forgetting when we have been talking today is that we are here dealing with marriages which are marriages in name only.
I am with the hon. Member for Pontypool and all hon. Members in the House in trying to promote happy marriages and to get people reconciled. But what we were really thinking of today were those people—a minority, it has been said—who are, unfortunately, the failures in this matter. It is in their interest, and also in the public interest, that we should consider the matter.
I would remind the Solicitor-General that in Australia and New Zealand the Governments have brought in excellent Measures, and I hope that as a result of this Private Member's Bill—it is a difficult way of dealing with the matter—the Government may in the future consider bringing forward a Bill of their own which will provide a great many more facilities in this matter. New Zealand and Australia are two Christian

countries which have Measures which, I understand, have proved satisfactory to the individuals concerned and have not made divorce quicker or easier in that the numbers divorced have not increased since the Measures came into operation.
For this reason I am very pleased that the hon. Member for Pontypool has been successful with some of the provisions which he put forward, and I hope that in future more efforts will be made to obtain a more comprehensive Bill which will be of benefit to our people.

3.45 p.m.

Mr. Dick Taverne: I should also like to congratulate my hon. Friend the Member for Pontypool (Mr. Abse) on his very eloquent speech in the course of which he announced the withdrawal of Clause 1. I should prefer to have gone down fighting on that Clause but nevertheless I understand that there is something of value to be saved in the Bill. I hope that in future the part which has been left out can be reintroduced. Now I merely want to express two things.
The first is my regret that the way in which we organise our business has been such that we are allowed only half a day or less to discuss a matter of immense importance. The second is that I want to place on record a protest not so much against those who have come to oppose the Bill but against the many who stayed away, and who thought it safer to stay away. so that it was impossible to force a closure during this debate.

3.46 p.m.

Mr. A. Bourne-Arton: I hope that the hon. Member for Pontypool (Mr. Abse) will be generous enough to accept from me an expression of my admiration of his conduct of the Bill. It would be generous of him to do so, because I have been an implacable opponent of that part of the Bill about which he feels so deeply—Clause 1. I know that other hon. Members on both sides of the House who opposed him on this would like to be associated with me in paying tribute to his courtesy, his immense hard work, his utter sincerity and his recognition that we were also sincere.
If I may add a word as a more junior Parliamentarian to a more senior one, I should like to express my personal


admiration for his dignity and courage today in accepting with, as he says, a heavy heart the truncation of the Bill in order that some good can come from the Measure, although it is not what he believes to be the best part of what he had in mind.
The hon. Gentleman knows that when he comes back to move a similar proposal as in Clause 1 he will find me and many other hon. Members still implacably opposed to what he is trying to do, but I hope that he will accept my personal tribute to his conduct throughout the Bill and particularly today.

3.48 p.m.

Mr. G. W. Reynolds: I add my congratulations to my hon. Friend the Member for Pontypool (Mr. Abse) but I wish to express my disappointment that we are not discussing a Bill with more in it. I am rather annoyed with some of my hon. Friends whose collaboration with Members opposite has put us into this position. At the same time, they were justified under our procedure in using such tactics and I would not condemn them for it because I might want to use the same tactics myself later. Although I am annoyed with them, they were entitled to do what they did if they felt so strongly on the matter.
I hope that at some time in the not-far-distant future some Government will allow the House to express an opinion without any Whips when we have a full attendance.

3.49 p.m.

Mr. Ronald Bell: The hon. Member for Islington, North (Mr. Reynolds) can be sure there are no Whips on today. Far from it. I join in the congratulations offered to the hon. Member for Pontypool (Mr. Abse) on the manner in which he has conducted the Bill. Like my hon. Friend the Member for Darlington (Mr. Bourne-Arton), I will be equally opposed to him if he seeks to bring this proposal forward again. But we have to differ on these things.
On Third Reading one is not in order in discussing what is not in the Bill.

Mr. M. Foot: Hear, hear.

Mr. Bell: The intervention of the hon. Member for Ebbw Vale (Mr. M. Foot)

was solely directed to what was not in the Bill, unless he used the words "humbug" and "hypocrisy" about what is now in the Bill.

Mr. M. Foot: I was referring specifically to the hon. Member.

Mr. Bell: In that case the hon. Member for Ebbw Vale was doubly out of order, because I am not in the Bill and the words as applied to me would hardly be in order. It would be very regrettable if people like the hon. Member for Ebbw Vale should get into the habit of describing the views of people with whom they disagree as "humbug and hypocrisy". Those words can spring rather too easily from the lips. Those who hold the views on marriage and divorce which I and others hold, hold them as sincerely as hon. Members like the hon. Member for Pontypool. We have held them as long and believe them just as rational and conducive to the welfare of the Commonwealth as those who hold the opposite views.
Clause 1 has gone and what is left in the Bill I can accept as beneficial. I think that Clauses 2 and 3 will be of great value. The law of condonation has been in a foolish state for a long time. Clause 2 is entirely beneficial and Clause 3, also, is a most valuable contribution to reconciliation work. I want to say only one word about that and it is in relation to the marriage guidance councillors. They do a very good job indeed. The fact that we have struck out Clause 5 this afternoon in no way implies that hon. Members do not appreciate the work done by marriage guidance councillors.
If any message is implicit in the Bill as it now stands it is that people should have another try to make up their differences and to live together. If they can do that without the help and intervention of any third person that is the best of all, because something is always lost when anyone comes into help, whether it is a skilled marriage counsellor or anyone else. An opportunity has been lost if the help of third parties has played its part. The best achievement of all is that people should master their own difficulties with their own unaided resources by sheer strength of character. If there is anything that this House can do to help by encouragement of that standard of values


it is by showing that true happiness does not consist in running away from one's responsibilities and seeking escape from them by a ruse like divorce, but in meeting difficulties and overcoming them. A married couple who meet difficulty in that way will not find that divorce is the best way out of problems which can beset a marriage.
I did not move two Amendments which stood in my name on the Notice Paper because I did not want to hold up the proceedings. I said that I would refer to them, very shortly indeed, on Third Reading. I am not altogether happy about Clause 6(1) nor about Clause 7. I do not know whether they were part of the original intention of the hon. Member for Pontypool or if they were added, but these are Clauses which give additional powers to the courts in the matter of disposition of property in matrimonial proceedings. I am not happy about them because they are very wide. [Interruption] I think we hear enough of the hon. Member for Brixton (Mr. Lipton) in this House. Someone else might have an opportunity of addressing the House.
The powers exercised by the courts in relation to property are already wide. In my view they amount almost to an abuse of the liberty of the individual in the interest of control by the State. There is a natural desire by a court or anyone else who has power to extend the boundaries of power and to introduce and order as wide a range of matters as it can, but to extend the power of the court to intervene by injunction in the financial and property arrangements of a spouse pending matrimonial proceedings increases that. The result might be that the maintenance provision would be prejudiced. It is going a very long way in interfering with the ordinary rights of the individual in order that matters may be regulated by the courts of the country. Had we had more time I would have pressed those Amendments and would have hoped that they would have been accepted; as it is, I commend what is left in the Bill.

3.55 p.m.

Mr. John Parker: As a sponsor of the Bill, I must express my regret that my hon. Friend the Member for Pontypool (Mr. Abse) has withdrawn Clause 1. There is strong resentment among people in the country at the

attitude which the Churches have taken in this matter. It is right that hon. Members should remember that only 10 per cent. of our fellow countrymen normally attend Church on Sundays, and I do not think that a particular section of the population has the right to try to force its views regarding marriage and divorce on the majority. If that kind of attitude persists the Churches will be responsible for producing a wave of anti-clerical feeling in this country.
There has never been such a thing up to now, because the Churches have not taken a contrary attitude to the popular view on reforms which were going forward. But if they persist in their opposition to changes of this kind, there will be a strong wave of anti-clericalism in the country. The Churches will deserve it and will suffer from it. I hope that such a wave will not develop and that in the not too distant future changes of the kind suggested in Clause 1 will become law. I regret that it has not been possible to make those changes in this Bill, and I hope the time will soon come when they will be made.

3.56 p.m.

The Solicitor-General (Sir Peter Rawlinson): My rôle in these proceedings has been similar to that of Cassandra with a touch of Polonius at certain times. I do not propose to engage in controversy at this late stage of the proceedings. This House is always generous in its admiration, as sometimes it is in its cruelty, and today tributes have rightly been paid to the hon. Member for Pontypool (Mr. Abse). I served on the Standing Committee which discussed this Bill and took part in the Second Reading debate. Unlike that of the hon. Member for Ebbw Vale (Mr. M. Foot), my voice has rarely been silent. I should like to pay a tribute to the hon. Member for Pontypool on the skill with which he put forward arguments and marshalled ail the matters referred to in the Bill.
I think it right that a tribute should be paid to the hon. Gentleman on this occasion. The Bill amends the law on condonation and deals with relief notwithstanding temporary cohabitation with a view to reconciliation and amends the law of collusion. There is a Clause dealing with maintenance and alimony and attempts to defeat claims for financial


relief. All these are substantial matters which I am sure will prove to the advantage of many people. It represents a great advance and improvement in many spheres of the domestic law of this country. Any hon. Member who has piloted such a Measure through the House must be gratified by that fact. I add my congratulations to those extended to the hon. Gentleman.

Question put and agreed to.

Bill accordingly read the Third time and passed.

ANIMAL BOARDING ESTABLISHMENTS BILL

As amended (in the Standing Committee) considered; read the Third time and passed.

REDUNDANT WORKERS (SEVERANCE PAY) BILL

Order for Second Reading read.

3.57 p.m.

Mr. John Diamond: I beg to move, That the Bill be now read a Second time.
In the short time available to me, I am privileged to move the Second Reading of this Ten Minute Rule Bill on severance pay. The principle is well established and approved by hon. Members on both sides of the House. The Government have said from time to time that they expect, and wish in the autumn, to bring in a Bill, and so I do not think I need do more at this stage than commend the Bill to the House.

3.58 p.m.

The Parliamentary Secretary to the Ministry of Labour (Mr. William Whitelaw): I should like to start by saying that the hon. Member for Gloucester (Mr. Diamond) is entitled to congratulate himself on being a pioneer in this field. He has directed attention to the problem of redundancy and the need for improved financial provision for redundant workers. I can say at once that the Government sympathise entirely with the objective of this Bill—[Interruption.]—which is to ensure that there are financial provisions for redundant workers.
In the Budget debate—[Interruption.]—my right hon. Friend the Chancellor of the Exchequer said that the Government intend to tackle the problem of redundancy vigorously in consultation with both sides of industry in the next few months—[Interruption.] If the hon. Member for Brixton (Mr. Lipton) wishes to talk, he will find that my voice can be much louder. I will talk louder than he can. In the meantime, perhaps the hon. Gentleman will allow me to continue.
At a later stage in the Budget debate, my right hon. Friend the Minister of Labour intimated the circumstances in which the Government were engaged in many aspects of this problem, including that of financial provision which, in the


view of the Government, must be dealt with—

It being Four o'clock the debate stood adjourned.

Debate to be resumed upon Friday next.

PUBLIC SERVICE VEHICLES (TRAVEL CONCESSIONS) ACT 1955 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

GIPSY CAMPS (COMPENSATION) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday next.

ESTATE AGENTS BILL

Adjourned debate on Second Reading [22nd March] further adjourned till Friday next.

PUBLIC ORDER ACT 1936 (AMENDMENT) BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 17th May.

RACIAL DISCRIMINATION AND INCITEMENT BILL

Order for Second Reading read.

Hon. Members: Object.

Second Reading deferred till Friday, 14th June.

POST OFFICE (MR. R. S. EMBLEY)

Motion made, and Question proposed, That this House do now adjourn.—[Mr. G. Campbell.]

4.1 p.m.

Mr. Graham Page: I wish to raise on the Motion for the Adjournment today the case of my constituent, Mr. Robert Samuel Embley, who was employed as an assistant inspector at the Bootle Post Office. He was suspended from duty without pay on 24th May, 1962, on suspicion of theft, and on 18th August, 1962, he was dismissed from the service as from 24th May. That is but one of the astonishing features of this case. He was suspended without pay in May but he was still held to his employment in the Post Office and therefore had no power to seek other employment. He therefore had no pay for a matter of three months. He was then dismissed summarily and restrospectively.
This was done to a man who was an assistant inspector and who had thirty-two years' employment in the service of the Post Office. It is a thing which a private employer could not do. A private employer cannot hold a man to his employment without pay while he makes up his mind whether he shall sack him. A private employer must either pay him or dismiss him and let him go and find another job. I understand that the Post Office claims a right to hold a man unpaid for as long as it chooses while it carries on a one-sided investigation which takes about three months. I claim that this man ought to have had an opportunity of putting his side of the story in some sort of proper inquiry or, on the other hand, if he were accused of theft he ought to have been prosecuted and to have been given the chance to clear himself and a chance to cross-examine the Post Office witnesses against him and to call his own witnesses.
On a short Adjournment debate it is impossible for me to give the full facts in this case, but I must give a few facts briefly in order to provide the background of the events which followed. The facts, briefly, are that Mr. Embley was an assistant inspector who had general supervision of the sorting office at Bootle where about seventy men are employed. Under


his supervision at any one time there would be about a couple of dozen men. For the past five years reports of a fairly large number of thefts of letters, banknotes and postal orders have been received from that office, and from time to time wrongly opened letters have been found in the building behind a cupboard or behind lockers.
This has been under investigation for some considerable time by investigation branch officers of the Post Office, but they have been unsuccessful in discovering the culprit. One can imagine that when something of this kind is under investigation in that way, the investigation officers become a little exasperated after a time at their own failure. These are just the sort of circumstances when, as one knows from police action from time to time, enthusiasm or determination to catch the culprit results perhaps in some distortion of the facts. Moreover, the risk of over-enthusiasm in apprehension is particularly prevalent when, as in this case, it is decided to set a trap for the culprit. Setting a trap must be about last resort in investigation, and if it goes off without catching anything the trappers are apt to look pretty stupid.
Mr. Embley's duties at the sorting office were such that when he checked over at night, locking up the building, he would be there alone for a matter of perhaps ten minutes between about five past nine and a quarter past nine. Let me take the description of the trap which was set for him at that time of night as given by an official of the Post Office in a statement which was delivered to Mr. Embley some time later. It involved the posting of a test letter containing six 10s. notes posted in a post box to which Mr. Embley and others had access. The statement describes what happened between 8.41 p.m. and 9.30 p.m. on 23rd May, 1962. First, two officers of the investigation branch went into the watching gallery over the sorting office where they could observe what was happening without being seen themselves. They described various comings and goings of about six or seven of the staff between 8.41 and 9.5, some of them going in and out of the building. By 9.5 Mr. Embley was on his own in the building. At 8.50, about a quarter of an hour before, an

investigation branch officer had posted the test letter in the box, which had been cleared about five minutes before that.
The statement by a Post Office official says this:
Between 9.5 p.m. and 9.10 p.m. observation was kept upon your movements"—
that is, Mr. Embley's movements—
in the sorting office from the watching gallery and at the latter time you were observed by the two officers of the Investigation Branch to go to the posting box and although your movements were obscure the officers heard the movements of letters being disturbed in the posting box.
This seems rather an extraordinary suggestion, that he was selecting just this test letter.
The statement goes on in this way:
You were seen to emerge from the posting box with your right hand in your jacket pocket, and enter the assistant inspector's office …".
The statement then describes him making some telephone calls and going out of the room to the first floor. I quote again:
… and after switching off the lights you then left the sorting office. The officers of the Investigation Branch heard the street door of the office in Oriel Street being closed and at 9.20 p.m. approximately you were seen to drive off in your private car.
I question here why the officers let Mr. Embley drive away. If their statement be true, it seems that they might have caught him red-handed with the test letter in his pocket. This is the sort of question which would have been asked in cross-examination if there had been an inquiry. It would be reasonable in such an inquiry, if the witnesses had been subjected to cross-examination, for it to have been suggested to them that it seemed that they wanted him out of the way at that time.
They had in fact posted an investigation branch officer at his home, which was only five minutes away. This is what happened:
At 9.25 p.m."—
five minutes after he had left the post office—
… as you drew up in your car before your house you were spoken to by an officer of the Investigation Branch and invited to return with him to the Bootle P.D.O., which you agreed to do and you drove your car back to the office accompanied by the officer, arriving there at 9.30 p.m. You were then interviewed by an officer of the Investigation Branch", and so on.


In the meantime, while Mr. Embley had been out of the office, those investigation branch officers who had remained in the office—
found lying on top of waste paper in a bag in the passageway torn fragments of a letter which they identified as part of the 'test' letter. There was, however, no trace of the six 10s. Bank of England notes.
Again, I cannot help but ask: why did they not stop Mr. Embley before he left? If their story is right, he had the test letter in his pocket.
When the statement states, as I have read out, "You were then interviewed", what happened was that when Mr. Embley returned to the Post Office he was confronted by a Mr. Kerr, one of the Investigation Branch officers, whose first words were:
I placed a letter in that box. Where are my bloody ten bob notes?
This so-called interview proceeded rather on those lines, with the Investigation Branch officers trying to persuade Mr. Embly that he ought to own up, and that it would be better if he did so.
When he was asked if he desired a friend to be present, Mr. Embley said that he did, and a Mr. Coleman arrived at about 11 p.m. The questioning continued all through the night until 4 or 5 o'clock in the morning. Mr. Embley was personally searched, the building was searched, his car was searched. An investigation Branch officer went off and searched his home, but the 10s. notes were not found. What was found was £249 10s. in cash, which the Investigation Branch officers took away, but returned to him the next day. These were Mr. Embley's perfectly legitimate savings, and the Post Office has never been able to assert otherwise.
Mr. Embley having been allowed to go home at 5 o'clock in the morning of 24th May, he was directed to report at the Liverpool Post Office at 10 o'clock on the same morning. He did so, and was told that he was suspended from duty without pay.
He then consulted his solicitor—that, apparently, is something of a crime in itself in the eyes of the Post Office, as I shall show later. He was asked to attend the Post Office again on 5th June. On the way, he called on his solicitor, who telephoned the Post Office and asked the purpose of the summons of Mr. Embley to the Post Office. There is a

conflict of evidence whether the solicitor was told that there was to be no questioning, or that there was to be questioning. At any rate, the solicitor decided not to attend.
Mr. Embley went alone. He was immediately taken to the Investigation Branch officers, and when he realised that he was to be questioned he asked for his solicitor to be present. He was told that he was not entitled to have his solicitor there, because he was still a Post Office servant. Here I come to the most serious and grave aspect of the case.
I propose to quote paragraph K 6.1 in the Post Office Staff Handbook, headed "Representation through Persons outside the Service". It reads:
Until an appeal has been made to the Regional director … and the appeal has been decided, any application or other communication to, or through, Members of Parliament or other persons outside the Service is strictly forbidden. This rule applies not only to appeals against punishment, but also to representation of any kind, whether for promotion or transfer or with any other object. Applications to or through Members of Parliament or other persons outside the Service may not be made in respect of punishments against which no appeal lies.
6.2. This rules does not debar an officer from obtaining advice from an outside person, for example, a solicitor, but should an application be received irregularly from a solicitor or from any other outside person, the officer at whose instance it is made will be liable to censure or other punishment.
I wonder, Mr. Speaker, whether you or any other hon. Member knew of this purported prohibition of a citizen's right of access to his Member of Parliament, or the limitation of his right to the services of a solicitor?
On that occasion, 5th June, Mr. Embley was questioned about his cash savings of £249 10s. that had been found. On 11th July, his solicitors were informed that no proceedings were to be taken against him. On 13th July, he received a long written statement going over incidents for a matter of five years, and he was invited to say why he should not be dismissed from the service. Mr. Embley wrote denying the charges and inferences in that statement. He was dismissed on 17th August, 1962, as from 24th May, 1962.
In September the solicitors inquired about an appeal. It was discovered that the form of appeal was merely that Mr.
Embley wrote a latter to the head postmaster, who replied by letter—no sort of inquiry at all. The result of the appeal was a letter from the head postmaster to Mr. Embley, dated 29th October, 1962, which stated:
… further, inquiries were made, but nothing came to light to persuade the Minister that there was any substance in your allegations or that your treatment had not been fair and just.
Regarding your claim that you should have been prosecuted for the incident of the 23rd May, it cannot be accepted that because it was decided not to do so, the evidence available should not have been taken into account in deciding whether you should be allowed to continue in the employment of the Post Office. Moreover I must emphasise that the case against you does not rest solely on that particular incident, but on a series of incidents over a number of years, and this was made quite clear in the comprehensive statement put to you on the 13th July, 1962.
If in fact he was dismissed not for one particular incident but for a series of incidents over a matter of five years, surely there should have been a proper inquiry or else he should have been prosecuted. There should have been some occasion on which he could have called his own witnesses in proof of his denial of these charges brought against him, or he should have had the opportunity of cross-examining witnesses brought by the Post Office.
Here is a man with thirty-two years apparently honest and faithful service to the Post Office. He is suspended for three months, without pay, before he is dismissed. He is given before his dismissal only these opportunities of clearing himself: first, an all-night grilling—I can only call it that—from ten o'clock in the evening until five o'clock the next morning; secondly, there was the head office questioning in which he was refused the assistance of his solicitor; and thirdly, a long written statement of incidents covering five years, with which he was invited to reply in writing; and then he was dismissed.
Then there was an appeal in writing answered by the statement that further inquiries had been made—not, of course, in the presence of the man himself. He has never had a chance to refute what was said against him and he is denied that opportunity now except that of bringing his case to his

Member of Parliament and getting it aired in this way. Not least important of all the facts brought to light in the investigation of this case is the fact that a Post Office employee is denied, by the staff rules, access to his M.P. He has to go through some form of procedure and he has to look after himself for a period of time without any assistance from anyone, his Member of Parliament, solicitor or other persons, and this seems to me to be most reprehensible conduct on the part of the officials of the Post Office.

4.18 p.m.

The Assistant Postmaster-General (Mr. Ray Mawby): In this case which my hon. Friend the Member for Crosby (Mr. Graham Page) has raised, the simple fact is that Mr. Embley was dismissed the service because the Postmaster-General had lost confidence in him. While I regret that the details of the case have to be discussed in public, it is necessary in order to put matters in their right perspective. The time available will permit of only a summary of the facts.
Almost immediately Mr. Embley took up duty in the Bootle office there was a marked increase in the losses of inward letters containing banknotes. A few months later, the finding of mutilated envelopes in the Bootle office suggested that some of the losses could be attributed to thefts by someone employed there.
It was established that some of the thefts were being carried out in the evenings when a comparatively small number of staff was on duty. Mr. Embley was often in charge of the office in the evenings. Mr. Embley was taken into confidence by the Post Office investigating officers who were trying to track down the culprit or culprits and knew when these officers were watching. These watches produced no result and eventually a series of circumstances led the investigating officers to suspect that Mr. Embley himself was responsible for the losses, and they ceased to take him into confidence.
The facts I spoke of were these. A special analysis going back ten months showed that no losses of letters posted in Bootle to be delivered in Bootle had occurred when Mr. Embley was on sick or annual leave. When Mr. Embley had


been told in confidence that the police were separately investigating the loss of letters addressed to a particular firm, these losses ceased abruptly.
It was established by watches, not disclosed to Mr. Embley, that on three separate occasions he went into the posting box enclosure after the remainder of the staff had left the office for the night and he was left to lock up. Of course, all this did no more than raise suspicion against Mr. Embley and, as my hon. Friend said, it was decided to put his honesty to a specific test. It may be of help to the House if I describe the way in which this was done.
As my hon. Friend said, a test letter containing six 10s. notes addressed to a local firm which receives a large number of payments in cash by post was posted in the box at the Bootle Office at 8.50 p.m. after the box had been cleared for the last time that day. The box could be opened from either outside or inside the office. A watch was kept from both inside and outside the office, the watching inside being done from a concealed watching gallery.
Only seven men, apart from Mr. Embley, were in the office after the letter was posted. All seven had left by 9.5 p.m. and none went near the posting box. Watchers outside confirmed that no one opened the box from the street side. Mr. Embley went into the enclosure containing the posting box at 9.10 p.m. The box itself could not be seen by the watchers, but he was heard to turn over the letters. He came out with his hand in his jacket pocket and went out of the sorting office for a short while. During this period he was heard to unlock one of the doors in the ground floor corridor not in view of the watchers.
He returned to the sorting office a few minutes later, locked up and left the office at 9.20 p.m., and the watchers immediately examined the contents of the letter box and found that the test letter was no longer there. A few minutes later they found the torn up envelope in a waste paper bag which was standing in the corridor on Mr. Embley's route out of the office.
It is true that the six 10s. notes were not found on Mr. Embley when he was asked to return to the office and agreed to be searched, but about six months later they were found hidden in a store

room in the basement when special fittings used at Christmas times only were brought out, the door of which leads off the ground floor corridor.

Mr. Graham Page: The Assistant Postmaster-General has produced some completely new facts, unknown to Mr. Embley and myself; that is, that the notes have now been found in the basement.

Mr. Mawby: If I have introduced any new facts my main point in replying to this debate is to leave no facts untold. What I have described is one of the facts I found during my investigation of this case since my hon. Friend took the matter up with me. I am seeking to give all the facts and to conceal none.
When questioned, Mr. Embley not only refused to offer any explanation about the missing letter and notes but also to account for his visit to the posting box. All he would say in reply to the important questions was, "I know nothing about it". My hon. Friend said that we relied solely upon the word of the watchers against that of Mr. Embley for what happened on the occasion of the test. This is, of course, true, but it is not a case of balancing one man's word against another. Tests of honesty of the kind I have described have to be approved by Post Office Headquarters; and approval is not given lightly.
The evidence against Mr. Embley which was judged to justify the making of the test came from six officers of the Post Office, three of whom were members of the special investigating force. Five officers were involved in the test itself, three of whom were members of that force. I for my part am satisfied that the officers who are specially selected for these duties, and from whom the highest standards are always demanded, acted quite impartially and fairly in an endeavour to get to the truth.
My hon. Friend made a number of points, one of which was that Mr. Embley was told that he could not have a solicitor present because he was a Post Office servant. It is important to point out that when questioning takes place there is a standard practice that any man is allowed to have a friend present, and in this case, as my hon. Friend said, on the evening of questioning he had a friend present. But


the following morning was, I think, the occasion to which my hon. Friend particularly referred. I find that the officer conducting the interview on that morning said that at no time did Mr. Embley request the presence of a solicitor. This is confirmed by a sergeant of the Metropolitan Police who was present. The notes of the interview, which were initialled by Mr. Embley, state only that he was asked if he wished to have a friend present and that he elected to have present as a friend a Post Office inspector.
As is normal practice in cases where an officer has not admitted to the offences and has not been prosecuted to conviction, Mr. Embley was presented with a statement of facts about the series of losses and, of course, about the loss of the test letter, and this is the statement of facts to which my hon. Friend has referred. In that statement of facts were included the inferences which the Post Office had drawn from them. The whole case, including Mr. Embley's reply to the statement of facts, was examined closely and independently by officials and by my predecessor the present Joint Under-Secretary of State for the Home Department, who authorised the dismissal on the grounds that those facts as a whole left no reasonable room for doubt that Mr. Embley was responsible for the losses.
After Mr. Embley had been dismissed, my hon. Friend asked my predecessor to re-examine the case and she complied with his request, and still remained satisfied that Mr. Embley had not been unfairly treated. I have since, as I said before, examined the case myself and I, too, am satisfied that there was nothing unfair in the treatment of Mr. Embley. In my view also the evidence leaves no room for doubt about the conclusions previously reached.
Like any other good employer, the Post Office does not dismiss a member of its staff without good reason. My hon. Friend suggested that if the man was felt to be guilty of a criminal offence the matter ought to be pushed to prosecution. On this matter many Postmasters-General in the past have taken the view that there may be occasions on which it is right and proper not to proceed to

prosecution in the case of a man where there is suspicion of theft, but the Post Office, like any other employer, and particularly in view of the duty which the Post Office has to the general public and the community as a whole for the safe transmission of mails of all kinds, has a special duty which is that the Postmaster-General and I must make certain that we only retain in our employment people in whom we can repose full confidence. This is the reason why—

Mr. Graham Page: May I ask my hon. Friend this question? Since he has disclosed a new fact—the finding of the 10s. notes in a part of the building which Mr. Embley could not possibly have reached according to the facts given in his own Post Office official statement—would my hon. Friend now think that the facts justify a proper full inquiry at which witnesses can be called and cross-examined and at which Mr. Embley can give evidence? It seems to me that new evidence has only now today been produced, which would justify an inquiry being made. I ask my hon. Friend whether he will direct that such an inquiry be made.

Mr. Mawby: I do not think my hon. Friend really got the point. The point is that the place where the notes were found was, in fact, a place to which the watchers were suspicious Mr. Embley had gone. As I said, he was heard to unlock one of the doors in the ground floor corridor, suggesting that he was going to the basement. This is, in fact, the area in which the 10s. notes were found.

Mr. Page: No, my hon. Friend is wrong. In the statement it is said that they heard him going to the first floor. The statement says:
After attempting to make a telephone call you were seen to leave the sorting office and your footsteps were heard to lead towards the first floor. At 9.16 p.m. you were seen to reenter the sorting office.
Now it is said that the notes were found in the basement. These are new facts.

Mr. Mawby: I have stated my understanding of the situation. As I say, I have investigated this matter completely. My information is that the place where the notes were found coincided with the place where the watchers were suspicious—I will not put it any higher


than that—that Mr. Embley had visited. In those circumstances—

The Question having been proposed after Four o'clock and the debate having

continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at twenty-nine minutes to Five o'clock.